Criminal procedure code, Law No. 101/2015/QH13

CRIMINAL PROCEDURE CODE[2]

Pursuant to the Constitution of the Socialist Republic of Vietnam;

The National Assembly promulgates the Criminal Procedure Code,

Part ONE

GENERAL PROVISIONS

Chapter I

SCOPE OF REGULATION, MISSION AND EFFECT OF THE CRIMINAL PROCEDURE CODE

Article 1. Scope of regulation

The Criminal Procedure Code prescribes the order and procedures for receiving and processing criminal information, initiating, investigating, prosecuting and adjudicating criminal cases and a number of procedures for executing criminal judgments; tasks and powers of, and relationships among, bodies competent to conduct the proceedings; tasks, powers and responsibilities of persons competent to conduct the proceedings; rights and obligations of proceeding participants and bodies, organizations and citizens; and international cooperation in the criminal procedure.

Article 2. Mission of the Criminal Procedure Code

The Criminal Procedure Code has the mission of guaranteeing accurate detection and just and timely handling of all criminal acts, preventing and stopping crime, and leaving no offenses unpunished and not punishing innocent person unjustly; contributing to the protection of justice, human rights, citizens’ rights, the socialist regime, the interests of the State, the lawful rights and interests of organizations and individuals, and educating everyone in the sense of observance of law to prevent and fight crime.

Article 3. Effect of the Criminal Procedure Code

1. The Criminal Procedure Code is effective on all criminal proceedings in the territory of the Socialist Republic of Vietnam.

2. Criminal proceedings against foreigners who commit offenses in the territory of the Socialist Republic of Vietnam shall be conducted in accordance with the provisions of treaties to which the Socialist Republic of Vietnam is a contracting party or on the principle of reciprocity.

Cases involving foreigners who are entitled to diplomatic or consular immunities in accordance with Vietnamese law or treaties to which the Socialist Republic of Vietnam is a contracting party or in conformity with international practices shall be settled in accordance with such treaties or international practices. If such treaties do not provide the immunities or there are no international practices relevant to the immunities, these cases shall be settled through diplomatic channels.

Article 4. Interpretation of terms

1. In this Code, the terms and expressions below shall be interpreted as follows:

a/ Bodies competent to conduct the proceedings include proceeding-conducting bodies and bodies assigned to carry out a number of investigation activities.

b/ Persons competent to conduct the proceedings include proceeding-conducting persons and persons assigned to carry out a number of investigation activities.

c/ Proceeding participants include individuals, bodies and organizations participating in the proceedings in accordance with this Code.

d/ Criminal information includes denunciations and reported information about offenses, criminal case initiation proposals of bodies, organizations and individuals, testimonies of confessing offenders, and information about offenses directly collected by the bodies competent to conduct the proceedings.

dd/ Criminally charged persons include arrestees, persons held in custody, the accused and defendants.

e/ Relatives of a proceeding participant or a person competent to conduct the proceedings include those who have kinship relations with such proceeding participant or person, including his wife or her husband, his/her birth parents, parents in law, adoptive parents, birth children and adopted children; grandparents, biological siblings; great grandparents, and biological uncles, aunts, nephews and nieces.

g/ Involved parties include civil plaintiffs, civil defendants and persons with interests or obligations related to criminal cases.

h/ Confession means voluntary declaration by an offender of his/her criminal act to a body or an organization before he/she or his/her offense is detected.

i/ Self-surrender means voluntary surrender by an offender of himself/herself and voluntary declaration of his/her criminal act to a competent body after his/her act is detected.

k/ Police escort means forcible transfer by a competent body of a person held in a case of emergency, an arrestee, a person held in custody, an accused or a defendant to a place for conducting investigation, prosecution or trial.

l/ Accompanied escort means forcible leading by a competent body of a witness or a person against whom an offense denunciation or a criminal case initiation proposal is made to a place for conducting investigation, prosecution or trial or of a victim who refuses expert assessment.

m/ Personal identification record means a sheet bearing summary information about the background, physical characteristics, photos taken from three poses, and two index fingerprints of an accused made and kept by a competent body.

n/ Fingerprint record sheet means a sheet bearing summary information about the personal background and all fingerprints of an accused made and kept by a competent body.

o/ Serious violation of the criminal procedure means the failure of a body or person competent to conduct the proceedings to conduct or to properly or adequately conduct, in the course of criminal case initiation, investigation, prosecution and trial, the processes and procedures prescribed in this Code, seriously infringing upon the lawful rights and interests of proceeding participants, or affecting the objective and comprehensive identification of the truth of the case.

2. In this Code, the terms below are referred to as follows:

a/ Investigation bodies of public security offices of urban districts, rural districts, towns, provincial cities and cities of centrally run cities are referred to as district-level investigation bodies.

b/ Investigation bodies of public security departments of provinces and centrally run cities are referred to as provincial-level investigation bodies.

c/ Military investigation bodies of military zones and the equivalent are referred to as military zone-level investigation bodies.

d/ People’s procuracies of urban districts, rural districts, towns, provincial cities and cities of centrally run cities are referred to as district-level people’s procuracies.

dd/ People’s procuracies of provinces and centrally run cities are referred to as provincial-level people’s procuracies.

e/ Military procuracies of military zones and the equivalent are referred to as military zone-level military procuracies.

g/ People’s courts of urban districts, rural districts, towns, provincial cities and cities of centrally run cities are referred to as district-level people’s courts.

h/ People’s courts of provinces and centrally run cities are referred to as provincial-level people’s courts.

i/ Military courts of military zones and the equivalent are referred to as military zone-level military courts.       

Article 5. Responsibilities of state bodies, organizations and individuals to prevent and fight crime

1. Within the ambit of their responsibilities, state bodies shall apply measures to prevent crime and coordinate with bodies competent to conduct the proceedings in preventing and fighting crime.

State bodies shall regularly inspect the performance of the assigned functions and tasks; promptly detect law violations for handling and immediately notify investigation bodies and procuracies of all criminal acts occurring in their bodies and fields under their management; request and send relevant documents to investigation bodies and procuracies to consider initiation of criminal cases against persons committing criminal acts.

Heads of state bodies shall be held responsible for the failure to notify, or for provision of untruthful information about, criminal acts occurring in their bodies and fields under their management to investigation bodies and procuracies.

2. Organizations and individuals have the right as well as obligation to detect, denounce and report offenses, and to participate in preventing and fighting crime.

3. The bodies competent to conduct the proceedings shall create conditions for state bodies, organizations and individuals to participate in preventing and fighting crime.

4. State bodies, organizations and individuals shall implement requests of, and create conditions for, the bodies and persons competent to conduct the proceedings to perform their tasks.

5. State inspectorates and audit offices shall coordinate with the bodies competent to conduct the proceedings in detecting and handling offenses. When detecting a case or matter showing signs of crime, they shall immediately transfer relevant documents and objects to and propose investigation bodies and procuracies to consider and initiate criminal cases.

6. All acts preventing the bodies and persons competent to conduct the proceedings from performing their tasks are strictly prohibited. 

Article 6. Identification and remediation of causes of, and conditions for, commission of crime

1. In the course of conducting the criminal proceedings, the bodies competent to conduct the proceedings shall identify causes of, and conditions for, commission of crime, and propose or request concerned bodies and organizations to apply remedial and preventive measures.

2. Concerned bodies and organizations shall comply with proposals or requests of the bodies competent to conduct the proceedings. Within 15 days after receiving such proposals or requests, concerned bodies and organizations shall reply in writing on the implementation of such proposals or requests.

Chapter II

FUNDAMENTAL PRINCIPLES

Article 7. Guarantee of socialist legality in the criminal procedure

All criminal proceedings shall be carried out in accordance with this Code. It is prohibited to process criminal information or to initiate, investigate, prosecute and adjudicate criminal cases based on grounds and according to processes and procedures other than those prescribed in this Code.

Article 8. Respect for and protection of human rights and lawful rights and interests of individuals

When conducting the proceedings, the bodies and persons competent to conduct the proceedings shall, within the ambit of their respective tasks and powers, respect and protect human rights and the lawful rights and interests of individuals, constantly examine the lawfulness and necessity of applied measures, and promptly cancel or change such measures if deeming that they violate the law or are no longer necessary.

Article 9. Guarantee of the right to equality before law

The criminal proceedings shall be conducted on the principle that all people are equal before the law and shall not be discriminated against because of their nationality, gender, belief, religion, social strata and status. Any person committing an offense shall be handled in accordance with law.

All legal persons are equal before law, regardless of their ownership type and economic sector.

Article 10. Guarantee of the right to body inviolability

Everyone has the right to body inviolability. Nobody shall be arrested without a court’s decision or procuracy’s decision or approval, except for offenders who are caught in the act.

The holding in case of emergency, arrest, holding in custody, and temporary detention of persons must comply with this Code. Torture, extortion of statements, corporal punishment or any form of treatment infringing upon human body, life or health is strictly prohibited.

Article 11. Protection of the life, health, honor, dignity and property of individuals; protection of the honor, reputation and property of legal persons

Everyone has the right to legal protection of his/her life, health, honor, dignity and property.

All acts illegally infringing upon the life, health, honor, dignity or property of individuals or upon the honor, reputation or property of legal persons shall be handled in accordance with law.

No Vietnamese citizen may be forcibly expatriated and delivered to another state.

Article 12. Guarantee of individuals’ rights to inviolability of residence, private life, personal secrets, family secrets, and safety and privacy of correspondence, telephone conversations and telegrams

No one may illegally break into residences or infringe upon private life, personal secrets, family secrets, safety and privacy of correspondence, telephone conversations and telegrams of individuals and other forms of private communication between individuals.

The search of residences; search, seizure and forfeiture of mails, telephone conversation records, telegrams, records of electronic data and other forms of private communication must comply with this Code.

Article 13. Presumption of innocence

A person charged with a criminal offense shall be presumed innocent until proven guilty according to the order and procedures prescribed in this Code and the court’s judgment of conviction takes legal effect.

If having insufficient grounds or being unable to clarify grounds for criminally charging or convicting a person according to the order and procedures prescribed in this Code, the bodies and persons competent to conduct the proceedings shall declare such person innocent.

Article 14. No person may be convicted twice of the same offense

It is prohibited to initiate a criminal case or conduct investigation, prosecution or trial against a person whose act has already been adjudicated by a court’s legally effective judgment, unless he/she commits another socially dangerous act which is prescribed as an offense by the Penal Code.

Article 15. Identification of the truth of criminal cases

The burden of proving offenses rests upon the bodies competent to conduct the proceedings. Criminally charged persons have the right but have no burden to prove their innocence.

Within the ambit of their respective tasks and powers, the bodies competent to conduct the proceedings shall apply lawful measures to identify the truth of criminal cases in an objective, comprehensive and adequate manner, and clarify evidence of guilt and evidence of innocence, circumstances aggravating and circumstances extenuating the penal liability of criminally charged persons.

Article 16. Guarantee of the right to defense of criminally charged persons, protection of lawful rights and interests of victims and involved parties

Criminally charged persons have the right to defend themselves or use lawyers or other persons to defend them.

The bodies and persons competent to conduct the proceedings shall notify and explain the right to defense to criminally charged persons and lawful rights and interests to victims and involved parties and ensure that these persons can fully exercise their rights and enjoy their interests in accordance with this Code.

Article 17. Responsibilities of the bodies and persons competent to conduct the proceedings

In conducting the proceedings, the bodies and persons competent to conduct the proceedings shall strictly comply with the law and take responsibility for their acts and decisions.

Those who violate the law in holding persons in case of emergency, arresting persons, detaining persons, holding persons in custody, initiating, investigating, prosecuting or adjudicating criminal cases or executing judgments shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability in accordance with law.

Article 18. Responsibility to initiate and settle criminal cases

Upon detecting acts showing criminal signs, the bodies competent to conduct the proceedings shall, within the ambit of their respective tasks and powers, initiate criminal cases and apply the measures prescribed in this Code to identify offenses and handle offenders or offending legal persons.

It is prohibited to initiate criminal cases based on grounds and according to the order and procedures other than those prescribed in this Code.

Article 19. Observance of law in investigation

Investigation bodies and bodies assigned to carry out a number of investigation activities shall comply with the law when carrying out investigation activities in accordance with this Code.

All investigation activities must respect the truth and be carried out in an objective, comprehensive and adequate manner; quickly and accurately detect all criminal acts, clarify evidence of guilt and evidence of innocence, circumstances aggravating and circumstances extenuating the penal liability, causes of, and conditions for, commission of crime, and other circumstances significant to the settlement of criminal cases.

Article 20. Responsibility to exercise the right to prosecution and supervise the observance of law in the criminal proceedings

Procuracies shall exercise the right to prosecution and supervise the observance of law in the criminal proceedings, decide on the accusation and detect violations of law in order to guarantee all criminal acts, offenders, offending legal persons and violations of law be promptly detected and strictly handled and the initiation, investigation, prosecution, trial of criminal cases, and execution of judgments be conducted against right offenders and offenses and in accordance with law, leaving no offenses, offending  persons and offending legal persons unpunished and no innocent persons unjustly punished.

Article 21. Guarantee of the impartiality of persons competent to conduct the proceedings and proceeding participants

Persons competent to conduct the proceedings, interpreters, translators, expert witnesses, property valuators and observers may not participate in the proceedings if there are grounds to believe that they might not be impartial while performing their tasks.

Article 22. Trial with the participation of assessors

The first-instance trial by the court shall be participated by assessors, except the case of a trial by summary procedure as prescribed in this Code.

Article 23. Judges and assessors conduct trial independently and abide by only the law

Judges and assessors shall conduct trial independently and abide by only the law; bodies, organizations and individuals are prohibited from intervening into the trial by judges and assessors.

Bodies, organizations and individuals that intervene into the trial by judges and assessors in any form shall, depending on the nature and seriousness of their violations, be disciplined, administratively sanctioned or examined for penal liability in accordance with law.

Article 24. The court conducts trial on a collegial basis

The court shall conduct trial on a collegial basis and make decisions by majority vote, except the case of a trial by summary procedure as prescribed in this Code.

Article 25. The court conducts prompt, fair and public trial

The court shall promptly conduct trial within the time limit prescribed by law, ensuring fairness.

The court shall conduct trial in public and every person may attend the trial, unless otherwise prescribed in this Code. In special cases in which state secrets should be kept, the fine national traditions and customs should be preserved, persons aged under 18 should be protected or private life secrets of involved parties should be kept at their legitimate request, the court may conduct trial privately but shall pronounce judgments publicly.

Article 26. The adversarial principle in trial is guaranteed

In the course of initiation, investigation, prosecution or trial of a criminal case, investigators, procurators, other persons competent to conduct the proceedings, criminally charged persons, defense counsels and other proceeding participants have the equal right to present evidence, assess evidence and make requests to clarify facts of the case.

Documents and evidence in case files transferred by the procuracy to the court for trial must be sufficient and lawful. Court hearings to try criminal cases shall be attended by all the persons specified by this Code. The absence of any of these persons from a court hearing must be because of force majeure events, external obstacles or other circumstances prescribed in this Code. The court shall create conditions for procurators, defendants, defense counsels and other proceeding participants to fully exercise their rights and perform their obligations and participate in the adversarial process at court.

All evidence of guilt, evidence of innocence, circumstances aggravating and circumstances extenuating the penal liability, application of points, clauses and articles of the Penal Code to determine offenses, decide on penalties against, and levels of compensation for damage to be paid by, defendants, and handle exhibits and analyze other circumstances significant to the settlement of cases shall be presented, argued and clarified at court hearings.

The court’s judgments and rulings shall be based on results of the examination and assessment of evidence and of the adversarial process at court hearings.

Article 27. First-instance and appellate trials are guaranteed

1. First-instance and appellate trials are guaranteed.

First-instance judgments and rulings of the court may be appealed or protested against in accordance with this Code. First-instance judgments and rulings, if not appealed or protested against within the time limits prescribed in this Code, will become legally effective.

In case first-instance judgments and rulings are appealed or protested against, the cases shall be brought for appellate trial. The appellate court’s judgments and rulings are legally effective.

2. If serious violations of law are detected or new circumstances emerge as prescribed in this Code, the court’s legally effective judgments and rulings shall be reviewed according to the cassation or re-opening procedures.

Article 28. Guarantee of the effect of the court’s judgments and rulings

1. The court’s legally effective judgments and rulings shall be respected by bodies, organizations and individuals. Concerned bodies, organizations and individuals shall strictly execute the court’s judgments and rulings.

2. Within the ambit of their respective tasks, powers and obligations, bodies, organizations and individuals shall coordinate with, create conditions for, and carry out requests of, bodies, organizations and individuals tasked to execute the court’s judgments and rulings.

Article 29. Spoken and written language used in the criminal procedure

The spoken and written language used in the criminal procedure is Vietnamese. Proceeding participants may use the spoken and written languages of their own nationalities; in this case, interpreters are required.

Article 30. Settlement of civil matters in criminal cases

The settlement of civil matters in criminal cases shall be effected together with the settlement of such criminal cases. In case a criminal case involves damage compensation or indemnification which is to be proven and does not affect the settlement of the criminal case, such civil matter may be separated and settled according to the civil procedure.

Article 31. Guarantee of the right to compensation of damage sufferers in the criminal proceedings

1. Persons who are held in case of emergency, arrestees, persons held in custody, detainees, persons against whom criminal cases are initiated, or investigation, prosecution or trial is conducted or judgments are executed unjustly or unlawfully are entitled to compensations for their material and emotional loss and restoration of honor.

The State shall pay compensations to, and restore the honor and interests of, persons who are held in case of emergency, arrestees, persons held in custody, detainees, persons against whom criminal cases are initiated, or investigation, prosecution or trial is conducted or judgments are executed unjustly or unlawfully.

2. Other persons who suffer from damage caused by the bodies and persons competent to conduct the proceedings are entitled to compensations paid by the State.

Article 32. Guarantee of the right to file complaints and denunciations in criminal proceedings

Individuals, bodies and organizations have the right to file complaints and individuals have the right to file denunciations about acts of law violation in criminal proceedings committed by the bodies or persons competent to conduct the proceedings or by any employees of such bodies.

Competent bodies and persons shall receive, consider and settle complaints and denunciations in a prompt and lawful manner; and send notices of settlement results to complainants and denouncers, and take remedial measures.

The order, procedures and competence for settling complaints and denunciations must comply with this Code.

It is prohibited to take revenge on complainants and denouncers or to abuse the right to file complaints and denunciations to slander others.

Article 33. Examination and supervision in the criminal proceedings

1. The bodies and persons competent to conduct the proceedings shall constantly examine the performance of procedural activities under their competence; and these bodies shall monitor one another in the receipt and processing of criminal information and in the initiation, prosecution and trial of criminal cases, and execution of judgments.

2. State bodies, Vietnam Fatherland Front Committees, the Front’s member organizations and popularly elected deputies have the right to supervise activities of the bodies and persons competent to conduct the proceedings, and supervise the settlement of complaints and denunciations by such bodies and persons.

If detecting illegal acts committed by the bodies or persons competent to conduct the proceedings, state bodies and popularly elected deputies may propose, or Vietnam Fatherland Front Committees and the Front’s member organizations may request, the bodies competent to conduct the proceedings to consider and handle such acts in accordance with this Code. The bodies competent to conduct the proceedings shall consider and respond to such proposals or requests and give replies in accordance with law.

Chapter III

BODIES AND PERSONS COMPETENT TO CONDUCT THE PROCEEDINGS

Article 34. Proceeding-conducting bodies and persons

1. Proceeding-conducting bodies include:

a/ Investigation bodies;

b/ Procuracies;

c/ Courts.

2. Proceeding-conducting persons include:

a/ Heads and deputy heads of investigation bodies, investigators and investigation officers;

b/ Chief procurators, deputy chief procurators of procuracies, procurators, controllers;

c/ Chief justices, deputy chief justices of courts, judges, assessors, court clerks, evaluators.

Article 35. Bodies and persons assigned to carry out a number of investigation activities

1. Bodies assigned to carry out a number of investigation activities include:

a/ Bodies of the Border Guard;

b/ Bodies of the Customs;

c/ Bodies of the Forest Protection Force;

d/ Bodies of the Marine Police;

dd/ Bodies of the Fisheries Surveillance Force;

e/ Bodies of the People’s Public Security Force assigned to carry out a number of investigation activities;

g/ Other bodies in the People’s Army assigned to carry out a number of investigation activities.

The bodies assigned to carry out a number of investigation activities specified in this Clause are also specified in the Law on Organization of Criminal Investigation Bodies.

2. Persons assigned to carry out a number of investigation activities include:

a/ Persons assigned to carry out a number of investigation activities of the Border Guard include the director and deputy directors of the Border-Guard Reconnaissance Department; the director and deputy directors of the Drug and Offense Prevention and Control Department; the head and deputy heads of the Drug and Offense Prevention and Control Task Force; commanders and deputy commanders of provincial-level Border Guard Commands; commanders and deputy commanders of Border Guard posts; commanders and deputy commanders of Port Border Guard Posts;

b/ Persons assigned to carry out a number of investigation activities of the Customs include the director and deputy directors of the Anti-Smuggling Investigation Department; director and deputy directors of the Post-Customs Clearance Inspection Department; directors and deputy directors of provincial-level and inter-provincial-level Customs Departments; directors and deputy directors of the Border-Gate Customs Sub-Departments;

c/ Persons assigned to carry out a number of investigation activities of the Forest Protection Force include the director and deputy directors of the Forest Protection Department; directors and deputy directors of provincial-level Forest Protection Sub-Departments; and directors and deputy directors of district-level Forest Protection Sections;

d/ Persons assigned to carry out a number of investigation activities of the Marine Police include the commander and deputy commanders of the Marine Police; commanders and deputy commanders of regional Marine Police Commands; the director and deputy directors of the Operation and Law Department; the head and deputy heads of the Drug-Related Offense Prevention and Control Task Force; commanders and deputy commanders of Naval Fleets; commanders and deputy commanders of Naval Flotillas; heads and deputy heads of Marine Police Teams;

dd/ Persons assigned to carry out a number of investigation activities of the Fisheries Surveillance Force include the director and deputy directors of the Fisheries Surveillance Department; directors and deputy directors of regional Fisheries Surveillance Sub-Departments;

e/ Persons assigned to carry out a number of investigation activities of other bodies in the People’s Public Security Force include directors and deputy directors of the Fire Prevention and Fighting Police Offices; departmental directors and deputy directors, section heads and deputy heads of the bodies assigned to carry out a number of investigation activities of the People’s Public Security Force, and superintendents and deputy superintendents of detention camps as prescribed by the Law on Organization of Criminal Investigation Bodies;  

g/ Persons assigned to carry out a number of investigation activities of other bodies in the People’s Army include superintendents and deputy superintendents of detention camps, and heads of regiment-level independent units and the equivalent;

h/ Investigation officers of the bodies specified in Clause 1 of this Article.

Article 36. Tasks, powers and responsibilities of heads and deputy heads of investigation bodies

1. The heads of investigation bodies have the following tasks and powers:

a/ To personally organize and direct the receipt and processing of criminal information and the initiation and investigation of criminal cases by their investigation bodies;

b/ To assign tasks to, or change, their deputies, receive and handle criminal information, examine the initiation and investigation of criminal cases by their deputies; to decide to change or cancel groundless and unlawful decisions of their deputies;

c/ To assign tasks to, or change, investigators and investigation officers; to examine the receipt and processing of criminal information, initiation and investigation of criminal cases by investigators and investigation officers; to decide to change or cancel groundless and unlawful decisions of investigators;

d/ To settle complaints and denunciations falling under the competence of their investigation bodies.

When the head of an investigation body is absent, he/she may authorize one of his/her deputies to perform his/her tasks and exercise his/her powers. Deputy heads must be answerable to their heads for their authorized tasks.

2. When conducting the criminal proceedings, heads of investigation bodies have the following tasks and powers:

a/ To decide to suspend the processing of offense denunciations and reported criminal information and criminal case initiation proposals; to decide whether or not to initiate criminal cases, supplement or change decisions on initiation of criminal cases; to decide to initiate criminal proceedings, supplement or change decisions on initiation of criminal proceedings against the accused; to decide to entrust investigation to other bodies or persons;

b/ To decide to apply, change or cancel deterrent measures, coercive measures and special procedural investigation measures as prescribed in this Code;

c/ To decide to pursue, or cease the pursuit of, the accused, and to search, forfeit, seize and handle exhibits;

d/ To decide to solicit expert assessment, additional expert assessment or expert re-assessment, exhume corpses, conduct investigative experiments, replace, or request replacement of, expert witnesses; to request property valuation or revaluation or replacement of property valuators;

dd/ To personally examine and verify criminal information and implement investigation measures;

e/ To make investigation conclusions of criminal cases;

g/ To decide to suspend, cease or resume investigation of criminal cases and the accused;

h/ To issue other warrants and decisions and conduct other proceedings falling under the competence of their investigation bodies.

3. When assigned to initiate and investigate criminal cases, deputy heads of investigation bodies have the tasks and powers specified in Clauses 1 and 2 of this Article, except that specified at Point b, Clause 1 of this Article. Deputy heads of investigation bodies may not settle complaints and denunciations about their acts and decisions.

4. Heads and deputy heads of investigation bodies shall take responsibility before law for their acts and decisions. They may not authorize investigators to perform their tasks and exercise their powers.

Article 37. Tasks, powers and responsibilities of investigators

1. Investigators assigned to initiate and investigate criminal cases have the following tasks and powers:

a/ To personally examine, verify and compile files for processing criminal information;

b/ To compile criminal case files;

c/ To request or recommend the appointment or replacement of defense counsels; to request appointment or replacement of interpreters and translators;

d/ To summon and interrogate the accused; to summon, and take statements of, persons denouncing or reporting offenses, persons against whom offense denunciations or criminal case initiation proposals are made, and at-law representatives of legal persons; to take statements of persons held in case of emergency, arrestees, and persons held in custody; to summon, and take statements of, witnesses, victims and involved parties;

dd/ To decide on police escort of persons held in case of emergency, arrestees, persons held in custody and the accused; to decide on accompanied escort of witnesses, persons against whom offense denunciations or criminal case initiation proposals are made, and victims; to decide to deliver persons aged under 18 to the bodies, organizations or individuals responsible for supervising them; to decide to replace persons supervising offenders aged under 18;

e/ To execute warrants for holding of persons in case of emergency, warrants for or decisions on arrest, holding in custody or temporary detention of persons, search, forfeiture, seizure or distraint of property, or handling of exhibits;

g/ To conduct scene examination, exhumation of corpses, autopsy, examination of traces on bodies, confrontation, identification and investigative experiments;

h/ To perform other procedural tasks and exercise other procedural powers falling under the competence of investigation bodies as assigned by their heads.

2. Investigators shall take responsibility before law and heads and deputy heads of their investigation bodies for their acts and decisions.

Article 38. Tasks, powers and responsibilities of investigation officers of investigation bodies

1. Investigation officers shall perform the following tasks and exercise the following powers as assigned by investigators:

a/ To make written records of taking of statements, written records of interrogation and other records when investigators examine and verify criminal information and investigate criminal cases;

b/ To deliver, transfer or send warrants, decisions and other procedural documents in accordance with this Code;

c/ To assist investigators in making files for processing criminal information and case files, and to conduct other proceedings.

2. Investigation officers shall take responsibility before law and heads and deputy heads of their investigation bodies and investigators for their acts.

Article 39. Tasks, powers and responsibilities of heads, deputy heads and investigation officers of bodies of the Border Guard, Customs, Forest Protection Force, Marine Police and Fisheries Surveillance Force assigned to carry out a number of investigation activities

1. Heads of the bodies assigned to carry out a number of investigation activities specified at Points a, b, c, d and dd, Clause 2, Article 35 of this Code have the following tasks and powers:

a/ To personally direct the receipt and processing of criminal information, initiation and investigation of criminal cases according to their competence;

b/ To assign or change their deputies and investigation officers to receive and process criminal information, initiate and investigate criminal cases;

c/ To examine the receipt and processing of criminal information, initiation and investigation of criminal cases by their deputies and investigation officers;

d/ To decide to change or cancel groundless and unlawful decisions of their deputies and investigation officers;

dd/ To deliver criminally charged persons aged under 18 to their representatives for supervision.

When a head is absent, he/she may authorize a deputy to perform his/her tasks and exercise his/her powers. Deputies shall take responsibility before their heads for tasks they are authorized to perform. Heads and deputy heads may not authorize investigation officers to perform their tasks and exercise their powers.

2. When conducting the criminal proceedings against less serious offenses in case offenders are caught in the act and their background and evidence are clear, the persons specified at Points a, b, c, d and dd, Clause 2, Article 35 of this Code have the following tasks and powers:

a/ To collect evidence, documents and objects from related persons in order to check and verify criminal information;

b/ To suspend the settlement of offense denunciations, reported criminal information and criminal case initiation proposals; to decide whether or not to initiate criminal cases, change or supplement decisions on initiation of criminal cases; to decide to initiate criminal proceedings against the accused, change or supplement decisions on initiation of criminal proceedings against the accused;

c/ To personally organize and direct scene examinations;

d/ To decide to solicit expert assessment and request property valuation; to decide to search, forfeit, seize and preserve exhibits and documents directly related to criminal cases;

dd/ To summon and interrogate the accused; to summon, and take statements of, victims and involved parties; to summon, and take statements of, persons denouncing or reporting offenses and persons against whom offense denunciations or criminal case initiation proposals are made; to summon, and take statements of, witnesses; to take statements of persons held in case of emergency;

e/ To decide to apply deterrent measures and coercive measures in accordance with this Code;

g/ To make investigation conclusions and propose the initiation of criminal cases or make investigation conclusions and decide to terminate investigation; to suspend investigation; to resume investigation.

3. When conducting the criminal proceedings against serious offenses, very serious offenses or particularly serious offenses, or less serious offenses in complicated cases, the persons specified at Points a, b, c, d and dd, Clause 2, Article 35 of this Code have the following tasks and powers:

a/ To collect evidence, documents and objects from related persons to check and verify criminal information;

b/ To suspend the settlement of offense denunciations, reported criminal information and criminal case initiation proposals; to decide whether or not to initiate criminal cases, change or supplement decisions on initiation of criminal cases; 

c/ To search, forfeit, seize and preserve exhibits and documents directly related to criminal cases;

d/ To summon, and take statements of, witnesses, victims and involved parties.

4. Investigation officers have the following tasks and powers:

a/ To make files for processing criminal information; to take statements of related persons in order to check and verify criminal information;

b/ To make criminal case files;

c/ To interrogate the accused; to take statements of persons denouncing and reporting offenses, persons against whom offense denunciations or criminal case initiation proposals are made, persons held in case of emergency, arrestees, persons held in custody, witnesses, victims and involved parties;

d/ To conduct scene examinations; to execute warrants for search, forfeiture, seizure and preservation of exhibits and documents directly related to criminal cases.

5. Within the ambit of their responsibility, heads, deputy heads and investigation officers of the bodies of the Border Guard, Customs, Forest Protection Force, Marine Police and Fisheries Surveillance Force assigned to carry out a number of investigation activities shall take responsibility before law for their acts and decisions. Heads and deputy heads of these bodies may not authorize investigation officers to perform their tasks and exercise their powers.

Article 40. Tasks, powers and responsibilities of heads, deputy heads and investigation officers of other bodies of the People’s Public Security and the People’s Army assigned to carry out a number of investigation activities

1. Heads of the bodies assigned to carry out a number of investigation activities specified at Points e and g, Clause 2, Article 35 of this Code have the following tasks and powers:

a/ To personally direct the initiation and investigation of criminal cases according to their competence;

b/ To assign or change their deputies and investigation officers to initiate and investigate criminal cases;

c/ To examine the receipt and processing of criminal information, initiation and investigation of criminal cases by their deputies and investigation officers;

d/ To change or cancel groundless and unlawful decisions of their deputies and investigation officers;

If a head is absent, he/she may authorize a deputy to perform his/her tasks and exercise his/her powers. Deputies shall take responsibility before their heads for tasks they are authorized to perform.

2. When conducting the criminal proceedings, the persons specified at Points e and g, Clause 2, Article 35 of this Code have the following tasks and powers:

a/ To collect evidence, documents and objects from related persons to check and verify criminal information;

b/ To suspend the processing of criminal information; to decide whether or not to initiate criminal cases, change or supplement decisions on initiation of criminal cases;

c/ To personally organize and direct scene examinations;

d/ To search, forfeit, seize and preserve exhibits and documents directly related to criminal cases;

dd/ To summon persons denouncing or reporting offenses, persons against whom offense denunciations or criminal case initiation proposals are made, and witnesses, victims and involved parties to take their statements.

3. Investigation officers have the following tasks and powers:

a/ To make files for processing criminal information; to take statements of related persons in order to check and verify criminal information;

b/ To make criminal case files;

c/ To take statements of persons denouncing or reporting offenses and persons against whom offense denunciations or criminal case initiation proposals are made, and of witnesses, victims and involved parties;

d/ To conduct scene examinations; to execute warrants for search, forfeiture, seizure and preservation of exhibits and documents directly related to criminal cases.

dd/ To deliver and send warrants, decisions and other procedural documents in accordance with this Code.

4. Within the ambit of their responsibility, heads, deputy heads and investigation officers of the bodies of the People’s Public Security and the People’s Army assigned to carry out a number of investigation activities shall take responsibility before law for their acts and decisions. Heads and deputy heads of these bodies may not authorize investigation officers to perform their tasks and exercise their powers.

Article 41. Tasks, powers and responsibilities of chief procurators and deputy chief procurators of procuracies

1. Chief procurators of procuracies have the following tasks and powers:

a/ To personally organize and direct the exercise of the right to prosecution and supervision of the observance of law in the criminal proceedings;

b/ To assign or change deputy chief procurators of their procuracies; to examine the exercise of the right to prosecution and supervision of the observance of law in the criminal proceedings by deputy chief procurators of their procuracies; to change or cancel groundless and unlawful decisions of deputy chief procurators of their procuracies;

c/ To assign or change procurators and controllers; to examine the exercise of the right to prosecution and supervision of the observance of law in the criminal proceedings by procurators and controllers; to change or cancel groundless and unlawful decisions of procurators;

d/ To revoke, invalidate or cancel groundless and unlawful decisions of lower-level procuracies;

dd/ To settle complaints and denunciations falling under the competence of procuracies.

If a chief procurator is absent, he/she may authorize a deputy chief procurator to perform his/her tasks and exercise his/her powers. Deputy chief procurators shall take responsibility before chief procurators for tasks they are authorized to perform.

2. When exercising the right to prosecution and supervising the observance of law in the criminal proceedings, chief procurators of procuracies have the following tasks and powers:

a/ To request the investigation bodies or bodies assigned to carry out a number of investigation activities to receive and process criminal information, initiate criminal cases, initiate criminal proceedings against the accused or change or supplement decisions on initiation of criminal cases or initiation of criminal proceedings against the accused; to decide to initiate or not to initiate criminal cases, to initiate or not to initiate criminal proceedings against the accused, to change or supplement decisions on initiation of criminal cases or initiation of criminal proceedings against the accused in accordance with this Code;

b/ To suspend the processing of criminal information; to initiate or not to initiate criminal cases, supplement or change decisions on initiation of criminal cases; to initiate criminal proceedings against the accused, supplement or change decisions on initiation of criminal proceedings against the accused; to join or separate cases;

c/ To apply, change or cancel deterrent measures, coercive measures and special procedural investigation measures; to decide to extend the time limit for examination and verification of criminal information, time limit for holding persons in custody, investigation time limit, temporary detention time limit and prosecution time limit;

d/ To search, forfeit, seize and handle exhibits;

dd/ To solicit expert assessment, additional expert assessment or expert re-assessment or conduct investigative experiments; to change or request replacement of expert witnesses; to request property valuation or revaluation or replacement of property valuators;

e/ To request heads of the investigation bodies and heads of the bodies assigned to carry out a number of investigation activities to change investigators and investigation officers;

g/ To approve or disapprove decisions and warrants of investigation bodies and bodies assigned to carry out a number of investigation activities;

h/ To cancel groundless and unlawful decisions and warrants of investigation bodies and bodies assigned to carry out a number of investigation activities;

i/ To settle disputes over the competence to process criminal information, initiate and investigate criminal cases; to decide to transfer criminal cases;

k/ To apply, or cease the application of, the measure of compulsory medical treatment;

l/ To apply summary procedure or cancel decisions on application of summary procedure;

m/ To prosecute the accused, and to return case files for additional investigation or reinvestigation;

n/ To request resumption of investigation; to decide to suspend or terminate criminal cases, terminate or suspend criminal cases against the accused; to decide to cancel decisions to suspend the processing of criminal information; to decide to resume the investigation of criminal cases, investigation of the accused, resumption of criminal cases or resumption of criminal cases against the accused;

o/ To file protests according to the appellate, cassation or reopening procedures against the court’s judgments and rulings in accordance with this Code;

p/ To exercise the right to make recommendations in accordance with law;

q/ To issue decisions and warrants and conduct other proceedings under the competence of procuracies.

3. When assigned to exercise the right to prosecution and supervise the observance of law in criminal proceedings, deputy chief procurators have the tasks and powers prescribed in Clauses 1 and 2 of this Article, except Point b, Clause 1 of this Article. Deputy chief procurators may not settle complaints and denunciations about their acts and decisions.

4. Chief procurators and deputy chief procurators shall take responsibility before law for their acts and decisions. Chief procurators and deputy chief procurators may not authorize procurators to perform their tasks and exercise their powers.

Article 42. Tasks, powers and responsibilities of procurators

1. Procurators assigned to exercise the right to prosecution and supervise the observance of law in the criminal proceedings have the following tasks and powers:

a/ To supervise the receipt and processing of criminal information by competent bodies and persons;

b/ To personally process and make files for processing criminal information;

c/ To supervise the receipt and processing of criminal information, initiate criminal cases, apply deterrent measures and coercive measures; to supervise the making of files for processing criminal information and case files by the bodies and persons with investigating competence; to supervise the initiation and investigation of criminal cases by investigation bodies and bodies assigned to carry out a number of investigation activities;

d/ To personally supervise the scene examination, autopsy, confrontation, identification, voice recognition, investigative experiments and searches;

dd/ To supervise the suspension and resumption of the processing of criminal information; and suspension, termination and resumption of, and making of conclusions on, investigation;

e/ To set investigation requirements; to request investigation bodies to pursue, or stop the pursuit of, the accused;

g/ To summon and interrogate the accused; to summon, and take statements of, persons denouncing or reporting offenses, persons against whom offense denunciations or criminal case initiation proposals are made, at-law representatives of legal persons, witnesses, victims and involved parties; to take statements of persons held in case of emergency;

h/ To decide on police escort of arrestees and the accused; to decide on accompanied escort of witnesses, persons against whom offense denunciations or criminal case initiation proposals are made, and victims; to decide to deliver persons aged under 18 to responsible bodies, organizations or individuals for supervision; to replace persons supervising offenders aged under 18;

i/ To personally carry out a number of investigation activities in accordance with this Code;

k/ To request replacement of persons competent to conduct the proceedings; to request or recommend appointment or replacement of defense counsels; to request appointment or recommend replacement of interpreters and translators;

l/ To conduct the proceedings at court hearings; to announce indictments or decisions on prosecution according to summary procedure and other decisions of procuracies on accusation of defendants; to ask questions, present evidence, documents and objects, make arraignments and arguments, and present their views on the settlement of criminal cases at court hearings or meetings;

m/ To supervise the observance of law in the stage of trial by the court and proceeding participants; to supervise judgments, rulings and other procedural documents of the court;

n/ To supervise the execution of the court’s judgments and rulings;

o/ To exercise the right to make requests and recommendations in accordance with law;

p/ To perform other procedural tasks and exercise other procedural powers under the competence of procuracies as assigned by chief procurators of their procuracies in accordance with this Code.

2. Procurators shall take responsibility before law and chief procurators and deputy chief procurators of their procuracies for their acts and decisions.

Article 43. Tasks, powers and responsibilities of controllers

1. Controllers shall perform the following tasks and exercise the following powers as assigned by procurators:

a/ To make written records of the taking of statements and written records of interrogation and other records in the criminal proceedings;

b/ To deliver, transfer or send warrants, decisions and other procedural documents in accordance with this Code;

c/ To assist procurators in making supervision files and files for processing criminal information and to carry out other procedural activities.

2. Controllers shall take responsibility before law and chief procurators, deputy chief procurators and procurators for their acts.

Article 44. Tasks, powers and responsibilities of chief justices and deputy chief justices of courts

1. Chief justices of courts have the following tasks and powers:

a/ To personally organize the trial of criminal cases; to settle disputes over jurisdiction;

b/ To assign deputy chief justices, judges and assessors of their courts to settle and adjudicate criminal cases; to assign court clerks to conduct the proceedings for criminal cases; to assign evaluators to verify criminal case files;

c/ To replace judges, assessors and court clerks before the opening of court hearings;

d/ To issue decisions on execution of criminal judgments;

dd/ To postpone the serving of imprisonment sentences;

e/ To suspend the serving of imprisonment sentences;

g/ To decide on expunction of criminal records;

h/ To settle complaints and denunciations falling under the jurisdiction of their courts.

When the chief justice of a court is absent, he/she may authorize one deputy chief justice to perform his/her tasks and exercise his/her powers. Deputy chief justices shall take responsibility before the chief justice for their assigned tasks.

2. When settling a criminal case, the chief justice of the court has the following tasks and powers:

a/ To apply, change or cancel the temporary detention measure, and handle exhibits;

b/ To apply, or cease the application of, the compulsory medical treatment measure;

c/ To apply the summary procedure or cancel the decision on application of the summary procedure;

d/ To make recommendations about or file protests according to the cassation procedures against the court’s legally effective judgments and rulings;

dd/ To decide on, and carry out, other procedural activities falling under the jurisdiction of his/her court;

e/ To conduct other proceedings in accordance with this Code.

3. When being assigned to settle or adjudicate a criminal case, a deputy chief justice of the court has the tasks and powers prescribed in Clauses 1 and 2 of this Article, except Point b, Clause 1 of this Article. Deputy chief justices of courts may not settle complaints and denunciations about their acts and decisions.

4. Chief justices and deputy chief justices shall take responsibility before law for their acts and decisions. Chief justices and deputy chief justices may not authorize judges to perform their tasks and exercise their powers.

Article 45. Tasks, powers and responsibilities of judges

1. The judge assigned to settle and adjudicate a criminal case has the following tasks and powers:

a/ To study the case file before the opening of the court hearing;

b/ To conduct the trial of the criminal case;

c/ To conduct proceedings and vote on matters falling under the jurisdiction of the trial panel;

d/ To conduct other proceedings falling under the jurisdiction of his/her court as assigned by the chief justice of his/her court.

2. The judge presiding over a court hearing has the tasks and powers prescribed in Clause 1 of this Article and the following tasks and powers:

a/ To apply, change or cancel deterrent measures and coercive measures, except the temporary detention measure;

b/ To return the case file for additional investigation;

c/ To bring the criminal case for trial; to cease or suspend the criminal case;

d/ To control the trial of the criminal case and adversarial process at the court hearing;

dd/ To solicit expert assessment, additional expert assessment or expert re-assessment, and to carry out investigative experiments; to replace, or request replacement of, expert witnesses; to request property valuation and replacement of property valuators;

e/ To request or recommend the appointment or replacement of defense counsels or replacement of persons supervising offenders aged under 18; to request appointment or replacement of interpreters and translators;

g/ To summon persons whom they need to inquire to the court hearing;

h/ To perform other procedural tasks and exercise other procedural powers under the jurisdiction of his/her court as assigned by the chief justice in accordance with this Code.

3. Judges shall take responsibility before law for their acts and decisions.

Article 46. Tasks, powers and responsibilities of assessors

1. An assessor assigned to adjudicate a criminal case according to the first-instance procedure has the following tasks and powers:

a/ To study the case file before the opening of the court hearing;

b/ To adjudicate the criminal case;

c/ To conduct proceedings and vote on matters falling under the jurisdiction of the trial panel.

2. Assessors shall take responsibility before law for their acts and decisions.

Article 47. Tasks, powers and responsibilities of court clerks

1. A court clerk assigned to carry out the procedure for a criminal case has the following tasks and powers:

a/ To check the presence of persons summoned by the court and announce reasons for the absence of any of these persons, if any;

b/ To announce the internal rules of the court hearing;

c/ To report to the trial panel the list of persons summoned to the court hearing and absent ones;

d/ To make court hearing transcripts;

dd/ To conduct other proceedings falling under the jurisdiction of his/her court as assigned by the chief justice of his/her court.

2. Court clerks shall take responsibility before law and chief justices of their courts for their acts.

Article 48. Tasks, powers and responsibilities of evaluators

1. An evaluator assigned to carry out the proceedings for a criminal case has the following tasks and powers:

a/ To verify the case file for which the court’s judgment or ruling has taken legal effect as assigned by the chief justice or a deputy chief justice;

b/ To make verification conclusions and report the verification result to the chief justice or a deputy chief justice;

c/ To assist the chief justice in performing tasks regarding the judgment execution falling under the jurisdiction of his/her court and other tasks as assigned by the chief justice or a deputy chief justice.

2. Evaluators shall take responsibility before law, the chief justice and deputy chief justices of their court for their acts.

Article 49. Cases of expected refusal or consequent replacement of persons competent to conduct the proceedings

A person competent to conduct the proceedings shall refuse to conduct the proceedings or be replaced in one of the following cases:

1. He/she is concurrently a victim or an involved party; a representative or a relative of a victim, an involved party, the accused or a defendant;

2. He/she has participated in the proceedings in the same case as a defense counsel, a witness, an expert witness, a property valuator, an interpreter or a translator;

3. There are other clear grounds to believe that he/she may not be impartial while performing his/her tasks.

Article 50. Persons that have the right to request replacement of persons competent to conduct the proceedings

1. Procurators.

2. Persons held in custody, the accused, defendants, victims, civil plaintiffs, civil defendants and their lawful representatives;

3. Defense counsels, defenders of lawful rights and interests of victims, civil plaintiffs or civil defendants.

Article 51. Replacement of investigators or investigation officers

1. Investigators or investigation officers shall refuse to conduct the proceedings or be replaced in one of the following cases:

a/ They fall into one of the cases specified in Article 49 of this Code;

b/ They have conducted the proceedings in the same case as procurators, controllers, judges, assessors, evaluators or court clerks.

2. The replacement of an investigator or investigation officer shall be decided by the head or a deputy head of his/her investigation body.

If the to be-replaced investigator is the head of the investigation body that falls into one of the cases specified in Clause 1 of this Article, the investigation of the criminal case shall be conducted by the immediate higher-level investigation body.

Article 52. Replacement of procurators or controllers

1. Procurators or controllers shall refuse to conduct the proceedings or be replaced in one of the following cases:

a/ They fall into one of the cases specified in Article 49 of this Code;

b/ They have conducted the proceedings in the same case as investigators, investigation officers, judges, assessors, evaluators or court clerks.

2. The replacement of a procurator before the opening of a court hearing shall be decided by the chief procurator or a deputy chief procurator of the same-level procuracy assigned to settle the case.

The replacement of a procurator who is the chief procurator of the procuracy shall be decided by the chief procurator of the immediate higher-level procuracy.

If procurators must be replaced at court hearings, trial panels shall issue decisions to postpone the court hearings.

Article 53. Replacement of judges or assessors

1. Judges or assessors shall refuse to participate in the trial or be replaced in one of the following cases:

a/ They fall into one of the cases specified in Article 49 of this Code;

b/ They sit on the same trial panel and are relatives;

c/ They have participated in the first-instance trial or appellate trial of, or conducted the proceedings in, the same case as investigators, investigation officers, procurators, controllers, evaluators or court clerks.

2. The replacement of a judge or an assessor before the opening of a court hearing shall be decided by the chief justice or a deputy chief justice of the court assigned to settle the case.

The replacement of a judge who is the chief justice of the court shall be decided by the chief justice of the immediate higher-level court.

The replacement of a judge or an assessor at a court hearing shall be decided by the trial panel before starting the inquiry by voting in the deliberation chamber. When a trial panel member is considered whether to be replaced, he/she may present his/her opinions and the trial panel shall make a decision by majority vote.

In case of replacement of a judge or an assessor at a court hearing, the trial panel shall issue a decision to postpone the court hearing.

Article 54. Replacement of court clerks

1. A court clerk shall refuse to conduct the proceedings or be replaced in one of the following cases:

a/ He/she falls into one of the cases specified in Article 49 of this Code;

b/ He/she has conducted the proceedings in the same case as a procurator, a controller, an investigator, an investigation officer, a judge, an assessor, an evaluator or a court clerk.   

2. The replacement of a court clerk before the opening of a court hearing shall be decided by the chief justice or a deputy chief justice of the court assigned to settle the case.

The replacement of a court clerk at a court hearing shall be decided by the trial panel.

In case a court clerk must be replaced at a court hearing, the trial panel shall issue a decision to postpone the court hearing.

Chapter IV

PROCEEDING PARTICIPANTS

Article 55. Proceeding participants

1. Persons denouncing or reporting offenses or proposing criminal case initiation.

2. Persons against whom offense denunciations or criminal case initiation proposals are made.

3. Persons held in case of emergency.

4. Arrestees.

5. Persons held in custody.

6. The accused.

7. Defendants.

8. Victims.

9. Civil plaintiffs.

10. Civil defendants.

11. Persons with interests or obligations related to cases.

12. Witnesses.

13. Observers.

14. Expert witnesses.

15. Property valuators.

16. Interpreters, translators.

17. Defense counsels.

18. Defenders of lawful rights and interests of victims and involved parties.

19. Defenders of lawful rights and interests of persons against whom offense denunciations or criminal case initiation proposals are made.

20. At-law representatives of offending legal persons, other representatives as defined by this Code.

Article 56. Persons denouncing or reporting offenses or proposing criminal case initiation

1. Individuals that have denounced or reported offenses; bodies or organizations that have reported offenses or proposed criminal case initiation have the following rights:

a/ To request competent bodies to keep secret their offense denunciations or reports or criminal case initiation proposals, and to protect the life, health, honor, dignity, reputation, property and other lawful rights and interests of their own and their relatives when threatened;

b/ To be notified of results of the processing of denunciations or reported criminal information or criminal case initiation proposals;

c/ To file complaints about procedural decisions or acts of bodies or persons competent to conduct the proceedings in the receipt and processing of denunciations or reported criminal information or criminal case initiation proposals.

2. Individuals, bodies and organizations specified in Clause 1 of this Article must be present at the request of bodies competent to process criminal information and truthfully present circumstances which they know about the cases.  

Article 57. Persons against whom offense denunciations or criminal case initiation proposals are made

1. Persons against whom offense denunciations or criminal case initiation proposals are made have the following rights:

a/ To be notified of denounced acts or acts against which criminal case initiation proposals are made;

b/ To be notified of and explained about their rights and obligations prescribed in this Article;

c/ To present their statements and opinions;

d/ To present evidence, documents, objects and claims; 

dd/ To present their opinions about related evidence, documents and objects and request persons competent to conduct the proceedings to examine and appraise them;

e/ To self-represent or ask others to defend their lawful rights and interests;

g/ To be notified of results of the processing of offense denunciations or criminal case initiation proposals;

h/ To file complaints about procedural decisions or acts of bodies or persons competent to conduct the proceedings.

2. Persons against whom offense denunciations or criminal case initiation proposals are made must be present at the request of bodies competent to process offense denunciations or criminal case initiation proposals.

Article 58. Persons held in case of emergency, arrestees

1. Persons held in case of emergency, arrestees in case of fragrant delicto and arrestees under pursuit warrants have the following rights:

a/ To be informed of, or to receive, warrants for holding persons in case of emergency, arrest warrants against persons to be held in case of emergency, decisions approving arrest warrants against persons to be held in case of emergency, or pursuit warrants;

b/ To be informed of the reasons why they are held or arrested;

c/ To be notified of and explained about their rights and obligations prescribed in this Article;

d/ To present their statements and opinions without having to incriminate themselves or being forced to plead guilty;

dd/ To present evidence, documents, objects and claims;

e/ To present their opinions about related evidence, documents and objects and request persons competent to conduct the proceedings to examine and appraise them;

g/ To self-represent or ask other persons to defend them;

h/ To file complaints about procedural decisions or acts of bodies and persons competent to conduct the proceedings in holding or arresting persons.

2. Persons held in case of emergency and arrestees are obliged to obey warrants for holding or arrest of persons and requests of bodies and persons competent to hold or arrest persons in accordance with this Code.

Article 59. Persons held in custody

1. Persons held in custody are those held in case of emergency or arrested in cases of flagrant delicto or under pursuit warrants, or are confessing or self-surrendering offenders against whom decisions on their custody are issued.

2. Persons held in custody have the following rights:

a/ To be informed of the reasons why they are held in custody; to receive decisions on their custody, decisions on extension of the custody period, decisions approving decisions on extension of the custody period and other procedural decisions in accordance with this Code;

b/ To be notified of and explained about their rights and obligations prescribed in this Article;

c/ To present their statements or opinions without having to incriminate themselves or being forced to plead guilty;

d/ To self-represent or ask others to defend them;

dd/ To present evidence, documents, objects and claims;

e/ To present their opinions about related evidence, documents and objects and request persons competent to conduct the proceedings to examine and appraise them;

g/ To file complaints about procedural decisions or acts of bodies and persons competent to conduct the proceedings in holding persons in custody.

3. Persons held in custody are obliged to comply with the provisions of this Code and the Law on Custody and Temporary Detention.

Article 60. The accused 

1. The accused are individuals or legal persons against whom or which criminal proceedings are initiated. Rights and obligations of the accused legal persons shall be exercised and performed by their at-law representatives in accordance with this Code.

2. The accused have the following rights:

a/ To be informed of the reasons why criminal proceedings are initiated;

b/ To be notified of and explained about their rights and obligations prescribed in this Article;

c/ To receive decisions on initiation of criminal proceedings against them; decisions modifying or supplementing decisions on initiation of criminal proceedings against them, decisions approving decisions on initiation of criminal proceedings against them, decisions approving decisions modifying or supplementing decisions on initiation of criminal proceedings against them; decisions on application, change or cancellation of deterrent measures or coercive measures; written investigation conclusions; decisions to cease or suspend investigation; decisions to cease or suspend criminal cases; indictments; decisions on prosecution and other procedural decisions in accordance with this Code;

d/ To present their statements or opinions without having to incriminate themselves or being forced to plead guilty;

dd/ To present evidence, documents, objects and claims;

e/ To present their opinions about related evidence, documents and objects and request persons competent to conduct the proceedings to examine and appraise them;

g/ To request expert assessment and property valuation; request replacement of persons competent to conduct the proceedings, expert witnesses, property valuators, interpreters and translators;

h/ To self-represent or ask others to defend them;

i/ To read and take notes of copies of documents or digitalized documents relating to the accusation or defense or copies of other documents relating to the defense after the investigation finishes if they so request;

k/ To file complaints about procedural decisions or acts of bodies and persons competent to conduct the proceedings.

3. The accused have the following obligations:

a/ To be present in response to summonses of persons competent to conduct the proceedings. In case of absence due to a force majeure event or an external obstacle, they may be police-escorted; if they abscond, they shall be pursued;

b/ To obey decisions and requests of bodies and persons competent to conduct the proceedings.

4. The Minister of Public Security shall assume the prime responsibility for, and coordinate with the Procurator General of the Supreme People’s Procuracy, Chief Justice of the Supreme People’s Court and Minister of National Defense in, prescribing in detail the order, procedures, time limit and place for the accused to read and take notes of copies of documents or digitalized documents relating to the accusation or defense or copies of other documents relating to the defense if the accused so requests under Point i, Clause 2 of this Article.

Article 61. Defendants

1. Defendants are individuals or legal persons whom the court has decided to bring for trial. Rights and obligations of defendants being legal persons shall be exercised and performed by their at-law representatives in accordance with this Code.

2. Defendants have the following rights:

a/ To receive decisions to bring criminal cases for trial; decisions on application, change or cancellation of deterrent measures or coercive measures; decisions to cease criminal cases; the court’s judgments and rulings and other procedural decisions in accordance with this Code;

b/ To participate in court hearings;

c/ To be notified of and explained about their rights and obligations prescribed in this Article;

d/ To request expert assessment and property valuation; to request replacement of persons competent to conduct the proceedings, expert witnesses, property valuators, interpreters and translators; to request summon of witnesses, victims, persons with interests or obligations related to criminal cases, expert witnesses, property valuators, other proceeding participants and persons competent to conduct the proceedings to participate in court hearings;

dd/ To present evidence, documents, objects and claims;

e/ To present their opinions about related evidence, documents and objects and request persons competent to conduct the proceedings to examine and appraise them;

g/ To self-represent or ask others to defend them;

h/ To present their statements or opinions without having to incriminate themselves or being forced to plead guilty;

i/ To request judges presiding over court hearings to ask or ask by themselves questions to participants in court hearings if the presiding judges so agree; make arguments and counter-arguments at court hearings;

k/ To have final words before the judgment deliberation;

l/ To read transcripts of court hearings, and request writing of modifications and supplements in the transcripts;

m/ To appeal against the court’s judgments and rulings;

n/ To file complaints about procedural decisions or acts of bodies and persons competent to conduct the proceedings;

o/ To exercise other rights provided by law.

3. Defendants have the following obligations:

a/ To be present in response to the court’s summonses. In case they are absent not due to a force majeure event or an external obstacle, they may be police-escorted; if they abscond, they shall be pursued;

b/ To obey decisions and requests of the court.

Article 62. Victims

1. Victims are individuals directly suffering physical, spiritual or property damage or bodies or organizations suffering property or reputation damage caused or threatened to be caused by offenses.

2. Victims or their representatives have the following rights:

a/ To be notified of and explained about their rights and obligations prescribed in this Article;

b/ To present evidence, documents, objects and claims;

c/ To present their opinions about related evidence, documents and objects and request persons competent to conduct the proceedings to examine and appraise them;

d/ To request expert assessment and property valuation in accordance with law;

dd/ To be notified of results of investigation and settlement of criminal cases;

e/ To request replacement of persons competent to conduct the proceedings, expert witnesses, property valuators, interpreters and translators;

g/ To request penalties, compensations for damage and measures to secure payment of compensations;

h/ To participate in court hearings; present their opinions and request judges presiding over court hearings to ask questions to defendants and other participants in court hearings; to make arguments and counter-arguments at court hearings to protect their lawful rights and interests; to read transcripts of court hearings;

i/ To self-represent or ask others to defend their lawful rights and interests;

k/ To participate in the proceedings in accordance with this Code;

l/ To request bodies competent to conduct the proceedings to protect the life, health, honor, dignity, property, lawful rights and interests of their own and their relatives when they are threatened;

m/ To appeal against the court’s judgments and rulings;

n/ To file complaints about procedural decisions or acts of bodies and persons competent to conduct the proceedings;

o/ To exercise other rights provided by law.

3. If a criminal case is initiated at the request of a victim, such victim or his/her representative shall present his/her accusations at court hearings.

4. Victims have the following obligations:

a/ To be present in response to summonses of persons competent to conduct the proceedings; if they are absent not due to a force majeure event or an external obstacle, they may be police-escorted;

b/ To obey decisions and requests of bodies and persons competent to conduct the proceedings.

5. In case a victim is deceased or missing, has lost his/her civil act capacity or has a limited civil act capacity, his/her representative shall exercise his/her rights and perform his/her obligations prescribed in this Article.

If a victim being a body or an organization is divided, split up, merged or consolidated, its at-law representative or the organization or individual taking over its rights and obligations has the rights and obligations prescribed in this Article.

Article 63. Civil plaintiffs

1. Civil plaintiffs are individuals, bodies or organizations suffering damage caused by offenses and file claims for damage compensations.

2. Civil plaintiffs or their representatives have the following rights:

a/ To be notified of and explained about their rights and obligations prescribed in this Article;

b/ To present evidence, documents, objects and claims;

c/ To present their opinions about related evidence, documents and objects and request persons competent to conduct the proceedings to examine and appraise them;

d/ To be notified of results of investigation and handling of criminal cases;

dd/ To request expert assessment and property valuation in accordance with law;

e/ To request replacement of persons competent to conduct the proceedings, expert witnesses, property valuators, interpreters and translators;

g/ To propose damage compensation amounts and measures to secure payment of compensations;

h/ To participate in court hearings; present their opinions and request judges presiding over court hearings to ask questions to participants in court hearings; to make arguments and counter-arguments at court hearings to protect their lawful rights and interests; to read transcripts of court hearings;

i/ To self-represent or ask others to defend their lawful rights and interests;

k/ To file complaints about procedural decisions or acts of bodies and persons competent to conduct the proceedings;

l/ To appeal against the court’s judgments or rulings regarding payment of compensations for damage;

m/ To exercise other rights in accordance with law.

3. Civil plaintiffs have the obligations:

a/ To be present in response to summonses of persons competent to conduct the proceedings;

b/ To present truthfully circumstances related to the payment of compensations for damage;

c/ To obey decisions and requests of bodies and persons competent to conduct the proceedings.

Article 64. Civil defendants

1. Civil defendants are individuals, bodies or organizations obligated by law to pay compensation for damage.

2. Civil defendants or their representatives have the following rights:

a/ To be notified of and explained about their rights and obligations prescribed in this Article;

b/ To accept or reject partly or wholly claims of civil plaintiffs;

c/ To present evidence, documents, objects and claims;

d/ To present their opinions about related evidence, documents and objects and request persons competent to conduct the proceedings to examine and appraise them;

dd/ To request expert assessment and property valuation in accordance with law;

e/ To be notified of results of investigation and handling of criminal cases related to claims for compensations for damage;

g/ To request replacement of persons competent to conduct the proceedings, expert witnesses, property valuators, interpreters and translators;

h/ To participate in court hearings; to present their opinions and request judges presiding over court hearings to ask questions to participants in court hearings; to make arguments and counter-arguments at court hearings to protect their lawful rights and interests; to read transcripts of court hearings;

i/ To self-represent or ask others to defend their lawful rights and interests;

k/ To file complaints about procedural decisions or acts of bodies and persons competent to conduct the proceedings;

l/ To appeal against the court’s judgments or rulings regarding the payment of compensations for damage;

m/ To exercise other rights in accordance with law.

3. Civil defendants have the following obligations:

a/ To be present in response to summonses of persons competent to conduct the proceedings;

b/ To present truthfully circumstances related to the payment of compensations for damage;

c/ To obey decisions and requests of bodies and persons competent to conduct the proceedings.

Article 65. Persons with interests or obligations related to criminal cases

1. Persons with interests or obligations related to a criminal case are individuals, bodies or organizations that have interests or obligations related to such case.

2. Persons with interests or obligations related to a criminal case or their representatives have the following rights:

a/ To be notified of and explained about their rights and obligations prescribed in this Article;

b/ To present evidence, documents, objects and claims;

c/ To request expert assessment and property valuation in accordance with law;

d/ To participate in court hearings; to present their opinions and request judges presiding over court hearings to ask questions to participants in court hearings; to make arguments and counter-arguments at court hearings to protect their lawful rights and interests; to read transcripts of court hearings;

dd/ To self-represent or ask others to defend their lawful rights and interests;

e/ To present their opinions about related evidence, documents and objects and request persons competent to conduct the proceedings to examine and appraise them;

g/ To appeal against the court’s judgments or rulings regarding matters directly related to their interests or obligations;

h/ To file complaints about procedural decisions or acts of bodies and persons competent to conduct the proceedings;

i/ To exercise other rights in accordance with law.

3. Persons with interests or obligations related to a criminal case have the following obligations:

a/ To be present in response to summonses of persons competent to conduct the proceedings;

b/ To present truthfully circumstances related to their rights and obligations;

c/ To obey decisions and requests of bodies and persons competent to conduct the proceedings.

Article 66. Witnesses

1. Witnesses are persons who know circumstances related to criminal information or criminal cases and are summoned by bodies competent to conduct the proceedings to make statements.

2. The following persons may not act as witnesses:

a/ Defense counsels for criminally charged persons;

b/ Persons with physical or mental defects which render them incapable of perceiving circumstances relating to criminal information or criminal cases or incapable of making truthful statements.

3. Witnesses have the following rights:

a/ To be notified of and explained about their rights and obligations prescribed in this Article;

b/ To request the bodies which have summoned them to protect the life, health, honor, dignity, property and other lawful rights and interests of their own and their relatives when threatened;

c/ To file complaints about procedural decisions and acts of bodies and persons competent to conduct the proceedings regarding their acting as witnesses;

d/ To be paid by the summoning bodies their travel and other expenses in accordance with law.

4. Witnesses have the following obligations:

a/ To be present in response to summonses of bodies competent to conduct the proceedings. In case they are absent not due to a force majeure event or an external obstacle and their absence hinders the processing of criminal information or initiation, investigation and trial of criminal cases, they may be police-escorted;

b/ To truthfully present circumstances which they know in relation to criminal information or criminal cases and explain how they know such circumstances.

5. Witnesses who make untruthful statements, refuse to make or avoid making statements not due to a force majeure event or an external obstacle shall bear penal liability in accordance with the Penal Code.

6. Bodies or organizations where witnesses work or study shall create conditions for them to participate in the proceedings.

Article 67. Observers

1. Observers are persons who are requested by bodies competent to conduct the proceedings to observe the performance of the proceedings in accordance with this Code.

2. The following persons may not act as observers:

a/ Relatives of criminally charged persons or persons competent to conduct the proceedings;

b/ Persons with physical or mental defects which render them incapable of properly perceiving facts;

c/ Persons aged under 18;

d/ Persons who might not be impartial for other reasons.

3. Observers have the following rights:

a/ To be notified of and explained about their rights and obligations prescribed in this Article;

b/ To request the bodies competent to conduct the proceedings to comply with the law, protect the life, health, honor, dignity, property and other lawful rights and interests of their own and their relatives when threatened;

c/ To read written records of proceedings and give comments on proceedings which they have observed;

d/ To file complaints about procedural decisions and acts of bodies and persons competent to conduct the proceedings which they have observed;

dd/ To be paid by the summoning bodies all expenses in accordance with law.

4. Observers have the following obligations:

a/ To be present when requested by bodies competent to conduct the proceedings;

b/ To observe all proceedings as requested;

c/ To sign written records of proceedings which they have observed;

d/ To keep secret investigation activities which they have observed;

dd/ To truthfully present circumstances which they have observed when requested by bodies competent to conduct the proceedings.

Article 68. Expert witnesses

1. Expert witnesses are persons who possess expert knowledge about the fields to be assessed and are solicited by bodies competent to conduct the proceedings or requested by proceeding participants to perform expert assessment in accordance with law.

2. Expert witnesses have the following rights:

a/ To study documents of cases relating to objects in need of expert assessment;

b/ To request assessment-soliciting bodies or assessment-requesting proceeding participants to provide documents necessary for making conclusions;

c/ To participate in the interrogation and taking of statements and ask questions about matters related to objects in need of expert assessment;

d/ To refuse to perform an expert assessment in case they are not given enough time for the expert assessment, are provided with inadequate or invalid documents for acceptable conclusions, or contents requested to be assessed are beyond their expert knowledge;

dd/ To write their own opinions in written general conclusions if they disagree with such general conclusions in case the expert assessment has been performed by a group of experts;

e/ To exercise other rights in accordance with the Law on Judicial Assessment.

3. Expert witnesses have the following obligations:

a/ To be present in response to summonses of bodies competent to conduct the proceedings; 

b/ To keep investigation secrets they know while performing the expert assessment.

4. Expert witnesses who make untruthful conclusions or refuse to make expert assessment conclusions not due to a force majeure event or an external obstacle shall bear penal liability in accordance with the Penal Code.

5. Expert witnesses shall refuse to participate in the proceedings or be replaced when falling into one of the following cases:

a/ They are concurrently victims or involved parties; representatives or relatives of victims, involved parties, the accused or defendants;

b/ They have participated in the proceedings in the same case as defense counsels, witnesses, interpreters, translators or property valuators;

c/ They have conducted the proceedings in the same case.

6. The replacement of expert witnesses shall be decided by expert assessment-soliciting bodies.

Article 69. Property valuators

1. Property valuators are persons who possess expert knowledge about prices and are requested by bodies competent to conduct the proceedings or proceeding participants to value property in accordance with law.

2. Property valuators have the following rights:

a/ To study documents of cases relating to objects in need of valuation;

b/ To request valuation-requesting bodies or proceeding participants to provide documents necessary for the valuation;

c/ To refuse to perform a valuation in case they are not given enough time for the valuation, are provided with documents which are inadequate or invalid for valuation, or contents in need of valuation are beyond their expert knowledge;

d/ To write their own conclusions in written general conclusions if they disagree with such general conclusions of the property valuation council;

dd/ To exercise other rights in accordance with law.

3. Property valuators have the following obligations:

a/ To be present in response to summonses of bodies competent to conduct the proceedings; 

b/ To keep investigation secrets they know while performing a property valuation;

c/ To perform other obligations prescribed by law.

4. Property valuators who make untruthful property valuation conclusions or refuse to participate in a property valuation not due to a force majeure event or an external obstacle shall bear penal liability in accordance with the Penal Code.

5. Property valuators shall refuse to participate in the proceedings or be replaced when falling into one of the following cases:

a/ They are concurrently victims or involved parties; representatives or relatives of victims, involved parties, the accused or defendants;

b/ They have participated in the proceedings in the same case as defense counsels, witnesses, expert witnesses, interpreters or translators;

c/ They have conducted the proceedings in the same case.

6. The replacement of property valuators shall be decided by property valuation-requesting bodies.

Article 70. Interpreters, translators

1. Interpreters and translators are persons who are able to interpret or translate languages and requested by bodies competent to conduct the proceedings in case proceeding participants cannot speak Vietnamese or there are procedural documents not written in Vietnamese.

2. Interpreters and translators have the following rights:

a/ To be notified of and explained about their rights and obligations prescribed in this Article;

b/ To request the requesting bodies to protect the life, health, honor, dignity, property and other lawful rights and interests of their own and their relatives when threatened;

c/ To file complaints about procedural decisions or acts of bodies and persons competent to conduct the proceedings related to the interpretation or translation;

d/ To be paid by the requesting bodies interpretation or translation remunerations and other entitlements as prescribed by law.

3. Interpreters and translators have the following obligations:

a/ To be present in response to summonses of bodies competent to conduct the proceedings; 

b/ To make truthful interpretations or translations. If making untruthful interpretations or translations, they shall bear penal liability in accordance with the Penal Code;

c/ To keep investigation secrets they know while performing interpretation or translation;

d/ To undertake before the requesting bodies to perform their obligations.

4. Interpreters and translators shall refuse to participate in the proceedings or be replaced when falling into one of the following cases:

a/ They are concurrently victims or involved parties; representatives or relatives of victims, involved parties, the accused or defendants;

b/ They have participated in the proceedings in the same case as defense counsels, witnesses, expert witnesses or translators;

c/ They have conducted the proceedings in the same case.

5. The replacement of interpreters and translators shall be decided by bodies requesting interpretation and translation.

6. The provisions of this Article also apply to persons who know the sign languages of dumb and deaf people or the writing system of the blind. 

Article 71. Responsibility to notify, explain and guarantee the exercise of the rights and performance of the obligations of proceeding participants

1. Bodies and persons competent to conduct the proceedings shall notify, explain and guarantee the exercise of the rights and performance of the obligations of proceeding participants in accordance with this Code.

In case criminally charged persons and victims are entitled to legal aid in accordance with the Law on Legal Aid, bodies and persons competent to conduct the proceedings shall explain the right to legal aid to them. If they request legal aid, bodies and persons competent to conduct the proceedings shall notify such to the state legal aid center.

2. The notification and explanation shall be recorded in writing.

Chapter V

DEFENSE AND PROTECTION OF LAWFUL RIGHTS AND INTERESTS OF VICTIMS AND INVOLVED PARTIES

Article 72. Defense counsels

1. Defense counsels are persons asked by criminally charged persons to defend them or appointed by bodies competent to conduct the proceedings and having their defense registrations accepted by bodies or persons competent to conduct the proceedings.

2. Defense counsels may be:

a/ Lawyers;

b/ Representatives of criminally charged persons;

c/ People’s advocates;

d/ Legal aid providers in situations in which criminally charged persons are entitled to legal aid.

3. People’s advocates are Vietnamese citizens who are aged 18 years or older, loyal to the Fatherland, possess good moral qualities and legal knowledge and are physically fit to perform assigned tasks and appointed by committees or member organizations of the Vietnam Fatherland Front to participate in defending criminally charged persons being their members.

4. The following persons may not act as defense counsels in a case:

a/ Persons who have conducted the proceedings in such case; persons who are relatives of persons who have conducted or are conducting the proceedings in such case;

b/ Persons who participate in such case as witnesses, expert witnesses, property valuators, interpreters or translators;

c/ Persons who are examined for penal liability, convicted persons whose criminal records have not yet been expunged, or persons subject to compulsory rehabilitation or compulsory education.

5. One defense counsel may defend multiple criminally charged persons in the same case provided that the rights and interests of such persons do not conflict.

Multiple defense counsels may defend one criminally charged person.

Article 73. Rights and obligations of defense counsels

1. Defense counsels have the following rights:

a/ To meet with, and ask questions to, criminally charged persons;

b/ To be present when statements are taken from arrestees or persons held in custody, and when the accused are interrogated, ask questions to arrestees, persons held in custody or the accused if so consented by persons competent to take statements or to interrogate. At the end of the taking of statements or interrogation by competent persons, to ask questions to arrestees, persons held in custody or the accused;

c/ To be present in the confrontation, identification, voice recognition and other investigation activities in accordance with this Code;

d/ To be notified in advance by bodies competent to conduct the proceedings of the time and place of taking of statements and interrogation and time and place of other investigation activities in accordance with this Code;

dd/ To read written records of proceedings in which they have participated, and procedural decisions concerning persons whom they defend;

e/ To request replacement of persons competent to conduct the proceedings, expert witnesses, property valuators, interpreters and translators; to request change or cancellation of deterrent measures or coercive measures;

g/ To request the conduct of proceedings in accordance with this Code; to request the summon of witnesses, other proceeding participants and persons competent to conduct the proceedings;

h/ To collect and present evidence, documents, objects and claims;

i/ To investigate, assess, and present their opinions on, related evidence, documents and objects, and request persons competent to conduct the proceedings to examine and assess them;

k/ To request bodies competent to conduct the proceedings to collect evidence and perform additional expert assessment, expert re-assessment or property revaluation;

l/ To read, take notes of, and copy, documents in case files relating to their defense since the completion of investigation;

m/ To participate in questioning and argument at court hearings;

n/ To file complaints about procedural decisions or acts of bodies and persons competent to conduct the proceedings;

o/ To appeal against the court’s judgments or rulings if defendants are aged under 18 or persons with physical or mental defects as prescribed in this Code.

2. Defense counsels have the following obligations:

a/ To apply every measure prescribed by law to clarify circumstances to prove the innocence of criminally charged persons and circumstances extenuating the penal liability of the accused and defendants;

b/ To provide legal aid to criminally charged persons in order to defend their lawful rights and interests;

c/ To refrain from refusing to defend criminally charged persons whom they have undertaken to defend not due to a force majeure event or an external obstacle;

d/ To respect the truth; to refrain from giving bribes to, forcing or inciting other persons to give untruthful statements or provide untruthful documents;

dd/ To be present in response to court summonses; in case they are appointed under Clause 1, Article 76 of this Code, to be present at the request of investigation bodies or procuracies;

e/ To refrain from disclosing investigation secrets they know while performing the defense; to refrain from using notes taken from, or copies of, case files for the purpose of infringing upon the State’s interests, public interests, or lawful rights and interests of bodies, organizations and individuals;

g/ To refrain from disclosing information about criminal cases or criminally charged persons they know while performing the defense, unless these persons give their written consent, and from using such information for the purpose of infringing upon the State’s interests, public interests, or lawful rights and interests of bodies, organizations and individuals.

3. Defense counsels who violate the law shall, depending on the nature and seriousness of their violations, have their defense registrations revoked, be disciplined, administratively sanctioned or examined for penal liability; if causing damage, they shall pay compensations in accordance with law. 

Article 74. Time of participation of defense counsels in the proceedings

Defense counsels may participate in the proceedings from the time of initiation of proceedings against the accused.

In case of arrest or holding of persons in custody, defense counsels may participate in the proceedings from the time when arrestees are present at offices of investigation bodies or bodies assigned to carry out a number of investigation activities or when decisions on holding of persons in custody are issued.

In case of necessity to keep investigation secrets for offenses infringing upon the national security, chief procurators of procuracies may decide to let defense counsels participate in the proceedings from the time when the investigation is completed.

Article 75. Selection of defense counsels

1. Defense counsels shall be selected by criminally charged persons or their representatives or relatives.

2. Within 12 hours after receiving a written request for a defense counsel of an arrestee or a person held in custody, the competent body managing such arrestee or person held in custody shall transfer the written request to the defense counsel or his/her representative or relative. In case the arrestee or person held in custody does not ask a specific defense counsel, the competent body managing him/her shall transfer the written request to his/her representative or relative for the latter to ask a person to defend him/her.

Within 24 hours after receiving a written request for a defense counsel from a detainee, the competent body managing such detainee shall transfer the request to the defense counsel or his/her representative or relative. In case the detainee does not ask a specific defense counsel, the competent body managing him/her shall transfer the request to his/her representative or relative for the latter to ask a person to defend him/her.

3. In case a representative or relative of an arrestee or a person held in custody or a detainee makes a written request for a defense counsel, the competent body shall promptly notify such to the arrestee, person held in custody or detainee to have his/her opinions on such request.

4. A criminally charged person or his/her representative or relative may request the Vietnam Fatherland Front Committee and the Front’s member organizations in a rural district, urban district, town, provincial city or city of a centrally run city or at a higher level to appoint a people’s advocate to defend the criminally charged person who is their member.

Article 76. Appointment of defense counsels 

1. In the following cases, if a criminally charged person or his/her representative or relative does not seek assistance from a defense counsel, the body competent to conduct the proceedings shall appoint a defense counsel for him/her:

a/ The accused or defendant is charged for an offense punishable by 20 years in prison, life imprisonment or death penalty as the highest penalty prescribed by the Penal Code;

b/ The criminally charged person has a physical defect which renders him/her unable to defend himself/herself, has a mental defect or is aged under 18.

2. A body competent to conduct the proceedings shall request or propose the following organizations to appoint a defense counsel in the cases specified in Clause 1 of this Article:

a/ A bar association shall assign a law-practicing organization to appoint a defense counsel;

b/ A state legal aid center shall appoint a legal aid provider or defense counsel for a person entitled to legal aid;

c/ The Vietnam Fatherland Front Committees and the Front’s member organizations shall appoint a people’s advocate to defend criminally charged persons who are their members.

Article 77. Replacement or refusal of defense counsels

1. The following persons may refuse or request replacement of defense counsels:

a/ Criminally charged persons;

b/ Representatives of criminally charged persons;

c/ Relatives of criminally charged persons.

All cases of replacement or refusal of defense counsels must be consented by criminally charged persons and recorded in writing, and such written record shall be included in case files, except the case specified at Point b, Clause 1, Article 76 of this Code.

2. In case an arrestee, a person held in custody or detainee at the stage of investigation refuses a defense counsel whose assistance is asked by his/her relative, the investigator and such defense counsel shall personally meet such person for confirmation of his/her refusal.

3. In case of appointment of a defense counsel under Clause 1, Article 76 of this Code, a criminally charged person and his/her representative or relative still has the right to request replacement of, or refuse, such defense counsel.

In case of replacement of a defense counsel, another defense counsel shall be appointed under Clause 2, Article 76 of this Code.

In case of refusal of a defense counsel, the body competent to conduct the proceedings shall make a written record of the refusal by the criminally charged person or his/her representative or relative under Point b, Clause 1, Article 76 of this Code and terminate the appointment of the defense counsel.

Article 78. Procedures for defense registration

1. In all cases of proceeding participation, defense counsels shall register their defense.

2. When registering his/her defense, a defense counsel shall produce the following papers:

a/ A lawyer shall produce his/her lawyer card enclosed with a certified copy thereof and a written request for lawyer of the criminally charged person or his/her representative or relative;

b/ A representative of the criminally charged person shall produce his/her people’s or citizen’s identity card together with a certified copy thereof and a document bearing the certification by a competent body of his/her relationship with the criminally charged person;

c/ A people’s advocate shall produce his/her people’s or citizen’s identity card together with a certified copy thereof and a document on appointment of the people’s advocate of the Vietnam Fatherland Front Committee and the Front’s member organizations;

d/ A legal aid provider or lawyer providing legal aid shall produce a document on appointment of legal aid provider of the organization providing legal aid and his/her legal aid provider card or lawyer card together with a certified copy thereof.

3. In the cases of appointment of a defense counsel specified in Article 76 of this Code, the defense counsel shall provide the following papers:

a/ A lawyer shall produce his/her lawyer card together with a certified copy thereof and a document on appointment of lawyer of the law-practicing organization where he/she practices or a document on assignment of the bar association, for individual law practitioners;

b/ A people’s advocate shall produce his/her people’s or citizen’s identity card together with a certified copy thereof and a document on appointment of people’s advocate of the Vietnam Fatherland Front Committee and the Front’s member organizations;

c/ A legal aid provider or lawyer providing legal aid shall produce his/her legal aid provider card or lawyer card together with a certified copy thereof and a document on appointment of legal aid provider of the state legal aid center.

4. Within 24 hours after receiving all the papers specified in Clause 2 or 3 of this Article, the body competent to conduct the proceedings shall check such papers and write the defense registration in the defense register if finding that the registering defense counsel does not fall into any of the cases of refusal of defense registration specified in Clause 5 of this Article, and promptly send a notice of defense counsel to the defense registrant and the custody or detention facility and keep the papers relating to the defense registration in the case file; if finding that the registration conditions are not fully satisfied, it shall refuse the defense registration and clearly state the reason for refusal in writing.

5. The body competent to conduct the proceedings shall refuse the defense registration in one of the following cases:

a/ The cases specified in Clause 4, Article 72 of this Code;

b/ The criminally charged person for whom a defense counsel is appointed refuses such defense counsel.

6. A notice of defense counsel is valid throughout the course of proceeding participation, except in the following cases:

a/ The criminally charged person refuses, or requests replacement of, the defense counsel;

b/ The representative or relative of the criminally charged person specified at Point b, Clause 1, Article 76 of this Code refuses, or requests replacement of, the defense counsel.

7. The body competent to conduct the proceedings shall cancel the defense registration and notify such to the defense counsel and custody or detention facility in one of the following cases: 

a/ When it detects that the defense counsel falls into one of the cases specified in Clause 4, Article 72 of this Code;

b/ The defense counsel violates the law while performing defense.

Article 79. Responsibility to notify defense counsels   

1. The body competent to conduct the proceedings shall send to a defense counsel a notice with a reasonable advance period of the time and place of performance of the proceedings in which he/she may participate in accordance with this Code.

2. If a defense counsel that has been notified in advance by the body competent to conduct the proceedings fails to be present, the proceedings shall still be conducted, except the cases specified in Article 291 of this Code.

Article 80. Meeting with arrestees, persons held in custody or detained accused or defendants

1. To meet an arrestee, a person held in custody or a detained accused or defendant, a defense counsel shall produce the notice of defense counsel, his/her lawyer card or legal aid provider card, and his/her people’s or citizen’s identity card.

2. A body managing arrestees, persons held in custody or detained accused or defendants shall inform the internal rules or regulations of the custody or detention facility and request defense counsels to strictly observe them. In case of detecting a defense counsel violating these regulations, it shall immediately stop the meeting, make a written record and report the violation to a competent person for handling in accordance with law.

Article 81. Collection and delivery of evidence, documents and objects related to the defense

1. Defense counsels shall collect evidence, documents, objects and facts related to the defense under Clause 2, Article 88 of this Code.

2. Depending on each stage of procedure, after collecting evidence, documents and objects related to the defense, defense counsels shall promptly deliver them to the bodies competent to conduct the proceedings for inclusion in case files. The delivery and receipt of evidence, documents and objects shall be recorded in writing as prescribed in Article 133 of this Code.

3. In case they cannot collect evidence, documents and objects related to the defense, defense counsels may request bodies competent to conduct the proceedings to do so.

Article 82. Reading, taking of notes and making of copies of documents in case files

1. After the investigation is completed, if a defense counsel wishes to read, take notes or make copies of documents in the case file relating to the defense, the body competent to conduct the proceedings shall arrange time and a place for him/her to do so.

2. After reading, taking notes or making copies of documents in the case file, the defense counsel shall return such documents in their original conditions to the body that has provided them. If the documents and the case file are lost, misplaced or damaged, he/she shall, depending on the nature and seriousness of his/her violation, be handled in accordance with law.

Article 83. Defenders of lawful rights and interests of persons against whom denunciations or criminal case initiation proposals are made

1. A defender of lawful rights and interests of a person against whom an offense denunciation or criminal case initiation proposal is made is a person asked by the latter to defend his/her lawful rights and interests.

2. A defender of lawful rights and interests of a person against whom an offense denunciation or criminal case initiation proposal is made may be:

a/ A lawyer;

b/ A people’s advocate.

c/ A representative;

d/ A legal aid provider.

3. Defenders of lawful rights and interests of persons against whom denunciations or criminal case initiation proposals are made have the following rights:

a/ To present evidence, documents, objects and claims;

b/ To examine, assess, and present their opinions on, related evidence, documents and objects, and request persons competent to conduct the proceedings to examine and assess them;

c/ To be present in the taking of statements of persons against whom denunciations or criminal case initiation proposals are made, and ask questions to these persons if investigators or procurators so consent. At the end of each taking of statements, ask questions to persons against whom denunciations or criminal case initiation proposals are made;

d/ To be present in the confrontation, identification or recognition of voice of persons against whom denunciations or criminal case initiation proposals are made;

dd/ To file complaints about procedural decisions or acts of bodies and persons competent to conduct the proceedings.

4. Defenders of lawful rights and interests of persons against whom denunciations or criminal case initiation proposals are made have the following obligations:

a/ To take measures prescribed by law to help clarify facts of cases;

b/ Provide legal aid to persons against whom denunciations or criminal case initiation proposals are made in order to defend their lawful rights and interests.

Article 84. Defenders of lawful rights and interests of victims and involved parties

1. A defender of lawful rights and interests of a victim or an involved party is a person asked by the latter to defend his/her lawful rights and interests.

2. A defender of lawful rights and interests of a victim or an involved party may be:

a/ A lawyer;

b/ A representative;

c/ A people’s advocate;

d/ A legal aid provider.

3. Defenders of lawful rights and interests of victims and involved parties have the following rights:

a/ To present evidence, documents, objects and claims;

b/ To examine, assess, and present their opinions on, related evidence, documents and objects, and request persons competent to conduct the proceedings to examine and assess them;

c/ To request expert assessment and property valuation;

d/ To be present in the taking of statements by bodies competent to conduct the proceedings, confrontation, identification or recognition of voice of persons whom they defend; to read, take notes or make copies of documents in case files related to the defense of interests of victims and involved parties after the investigation is completed;

dd/ To participate in the inquiry and arguments at court hearings; to read hearing transcripts;

e/ To file complaints about procedural decisions or acts of bodies and persons competent to conduct the proceedings;

g/ To request replacement of persons competent to conduct the proceedings, expert witnesses, property valuators, interpreters and translators;

h/ To file appeals against parts of the court’s judgments and rulings relating to interests and obligations of persons whom they defend and who are aged under 18 years or have physical or mental defects.

4. Defenders of lawful rights and interests of victims and involved parties have the following rights:

a/ To take measures prescribed by law to contribute to clarifying facts of cases;

b/ To provide legal aid to victims and involved parties in order to defend their lawful rights and interests.

Chapter VI

PROOF AND EVIDENCE

Article 85. Matters to be proved in criminal cases

When investigating, prosecuting and adjudicating a criminal case, a body competent to conduct the proceedings shall prove:

1. Whether or not a criminal act has been committed, the time, place and other circumstances of the criminal act;

2. Who committed the criminal act, whether he/she is at fault or not, whether the act was committed intentionally or unintentionally, and whether or not he/she can be held liable for criminal acts; and purpose and motive of the criminal act;

3. Circumstances aggravating and circumstances extenuating the penal liability of the accused or defendant, and personal identification characteristics of the accused or defendant;

4. The nature and extent of damage caused by the criminal act;

5. Causes of, and factors affecting, the commission of the criminal act;

6. Other circumstances related to the exclusion of or exemption from penal liability, or exemption from penalties. 

Article 86. Evidence

Evidence are facts collected according to the order and procedures prescribed in this Code, and used as grounds to determine whether or not criminal acts have been committed, to identify persons committing such acts, and other circumstances and facts significant to the settlement of criminal cases.

Article 87. Source of evidence

1. Evidence may be collected or identified from the following sources:

a/ Exhibits;

b/ Testimonies and statements;

c/ Electronic data;

d/ Expert assessment and property valuation conclusions;

dd/ Written records of criminal case initiation, investigation, prosecution, trial and judgment execution activities;

e/ Results of the performance of judicial mandate and other international cooperation activities;

g/ Other documents and objects.

2. Factual things that are collected not according to the order and procedures prescribed in this Code have no legal value and may not be used as grounds for the settlement of criminal cases.

Article 88. Collection of evidence

1. In order to collect evidence, bodies competent to conduct the proceedings may directly collect evidence in accordance with this Code; request bodies, organizations and individuals to provide evidence, documents, objects and electronic data and related circumstances and facts to clarify criminal cases.

2. In order to collect evidence, defense counsels may meet persons whom they defend, victims, witnesses and persons who know details of criminal cases to ask and hear them presenting matters relating to criminal cases; request bodies, organizations and individuals to provide documents, objects and electronic data relating to the defense.

3. Other proceeding participants, bodies, organizations or any individuals may provide evidence, documents, objects and electronic data and present matters relating to criminal cases.

4. Upon receiving evidence, documents, objects and electronic data relating to criminal cases provided by persons specified in Clauses 2 and 3 of this Article, bodies competent to conduct the proceedings shall make a written record of the delivery and receipt and examine and assess them in accordance with this Code.

5. Within 5 days after making a written record of the investigation or collection or receiving documents relating to criminal cases, if procurators do not personally perform supervision in accordance with this Code, investigation bodies or bodies assigned to carry out a number of investigation activities shall transfer such record or documents to procuracies for supervision of the making of case files. In case of external obstacles, the above time limit may be extended up to 15 days. Within 3 days, procuracies shall append record stamps to and make and keep copies of such record or documents in supervision files and return such record or documents in their original state to investigation bodies or bodies assigned to carry out a number of investigation activities. The delivery and receipt of records or documents shall be recorded in writing as prescribed in Article 133 of this Code.

Article 89. Exhibits  

Exhibits include objects used as tools or means for commission of offenses, objects bearing traces of crime, objects being subject matters of crime, money or other objects that have the value of proving crime and criminals or are significant to the settlement of criminal cases.

Article 90. Preservation of exhibits

1. Exhibits shall be preserved to remain intact and not to be lost, misplaced or damaged. The preservation of exhibits shall be performed as follows:

a/ Exhibits in need of sealing shall be sealed right after they are collected. The sealing and seal-breaking shall be recorded in writing, and such written record shall be included in case files. The sealing and seal-breaking of exhibits shall be done under regulations of the Government;

b/ Exhibits that are money, gold, silver, precious metals, precious stones, antiques, explosives, flammable materials, toxins, radioactive substances, weapons or military equipment shall be expert-assessed right after being collected and promptly transferred to the State Treasury or another specialized body for preservation. If exhibits that are money, gold, silver, precious metals, precious stones or antiques bear traces of offenses, they shall be sealed under Point a of this Clause; exhibits that are harmful germs, human organs, tissue samples, blood samples or other human body samples shall be preserved at specialized bodies prescribed by law;

c/ Exhibits that cannot be transported to bodies competent to conduct the proceedings for preservation, such as objects and property, shall be handed over by such bodies to their owners or lawful managers or their relatives or local administrations, bodies or organizations where such exhibits are located for preservation;

d/ Exhibits that are perishable or hard to be preserved shall be sold under decisions of competent bodies within the ambit of their powers in accordance with law. Sale proceeds shall be remitted into custody accounts of the competent bodies at the State Treasury for management;

dd/ Exhibits that are transported to bodies competent to conduct the proceedings for preservation shall be preserved by bodies of the People’s Public Security Force or People’s Army or bodies assigned to carry out a number of investigation activities at the stages of investigation and prosecution. Civil judgment enforcement bodies shall preserve exhibits at the stages of trial and judgment execution.

2. Persons responsible for preserving exhibits of criminal cases who cause the loss of or damage to such exhibits, illegally break their seals, consume, use, transfer, fraudulently exchange, hide or destroy them shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability in accordance with law.

In case of adding, reducing, modifying, fraudulently exchanging, destroying or damaging exhibits in order to falsify case files, these persons shall bear penal liability; if causing damage, they shall pay compensations in accordance with law.

Article 91. Statements of witnesses

1. Witnesses shall present what they know about offenses, criminal cases, personal details and behaviors of criminally charged persons or victims, their relationships with criminally charged persons, victims and other witnesses, and answer questions they are asked.

2. No circumstances and facts presented by witnesses may be used as evidence in case these witnesses cannot clearly state how they came to know such circumstances and facts.

Article 92. Statements of victims

1. Victims shall present circumstances and facts related to criminal information and cases, and their relationships with criminally charged persons, and answer questions they are asked.

2. No circumstances and facts presented by victims may be used as evidence if these victims cannot clearly state how they came to know such circumstances and facts.

Article 93. Statements of civil plaintiffs and civil defendants

1. Civil plaintiffs and civil defendants shall present circumstances and facts related to the payment of compensations for damage caused by offenses.

2. No circumstances and facts presented by civil plaintiffs or civil defendants may be used as evidence if such civil plaintiffs or civil defendants cannot clearly state how they came to know such circumstances and facts.

Article 94. Statements of persons with interests and obligations related to criminal cases

1. Persons with interests and obligations related to criminal cases shall present circumstances and facts directly related to their interests and obligations.

2. No circumstances and facts presented by persons with interests and obligations related to criminal cases may be used as evidence if such persons cannot clearly state how they came to know such circumstances and facts.

Article 95. Statements of persons held in case of emergency, persons against whom denunciations or criminal case initiation proposals are made, confessing or self-surrendering offenders, arrestees and persons held in custody

Persons held in case of emergency, persons against whom denunciations or criminal case initiation proposals are made, confessing or self-surrendering offenders, arrestees and persons held in custody shall present circumstances and facts related to their being suspected of having committed offenses.

Article 96. Statements of persons denouncing or reporting offenses

Persons denouncing or reporting offenses shall present circumstances and facts related to their denunciations or reports.

Article 97. Statements of observers

Observers shall present circumstances and facts they have observed in the proceedings.

Article 98. Statements of the accused and defendants

1. The accused and defendants shall present circumstances and facts of criminal cases.

2. Confessions of the accused and defendants may only be regarded as evidence if they are consistent with other evidence of criminal cases.

Confessions of the accused and defendants may not be used as sole evidence for accusation or conviction.

Article 99. Electronic data

1. Electronic data are symbols, characters, numbers, images, sounds or similar forms created, stored, transmitted or received by electronic devices.

2. Electronic data may be collected from electronic devices, computer networks, telecommunications networks, transmission lines and other electronic sources.

3. The evidentiary value of electronic data shall be determined based on methods of their creation, storage or transmission; methods of securing and maintaining their entirety; and methods of identifying creators, and other appropriate elements.

Article 100. Expert assessment conclusions

1. Expert assessment conclusions are documents made by individual assessors or assessment bodies or organizations to provide professional conclusions on matters in need of expert assessment.

2. Assessment bodies and organizations and individual assessors shall make conclusions on matters in need of expert assessment and bear responsibility for their conclusions.

If an expert assessment is performed by a group of experts, all group members shall sign written conclusions. If the opinions of the group’s members are divergent, each member shall write his/her opinion in written conclusions.

3. In case a body competent to conduct the proceedings disagrees with expert assessment conclusions, it shall clearly state the reason for its disagreement; if conclusions are unclear or incomplete, it shall decide on additional expert assessment or expert re-assessment according to the general procedures prescribed in this Code.

4. Expert assessment conclusions made by a person solicited to perform an expert assessment in case he/she must have refused to do so or been replaced have no legal value and may not be used as grounds for the settlement of criminal cases.

Article 101. Property valuation conclusions

1. Property valuation conclusions are documents made by property valuation councils to provide conclusions on prices of property in need of valuation.

Property valuation councils shall make conclusions on property prices and bear responsibility for their conclusions.

2. Property valuation conclusions must bear signatures of all members of a property valuation council. In case of disagreeing with property prices decided by the council, council members shall write their own conclusions in written conclusions.

3. In case a body competent to conduct the proceedings disagrees with property valuation conclusions, it shall clearly state the reason for its disagreement; if conclusions are unclear, it shall decide on revaluation according to the general procedures prescribed in this Code.

4. Valuation conclusions made by a property valuation council that violate the provisions of this Code and other relevant provisions of the valuation law have no legal value and may not be used as grounds for the settlement of criminal cases.

Article 102. Written records of examination and verification of criminal information and written records of initiation, investigation, prosecution and trial of criminal cases

Circumstances written in the records of examination and verification of criminal information and in the records of initiation, investigation, prosecution and trial of criminal cases, which are made in accordance with this Code, may be regarded as evidence.

Article 103. Results of performance of judicial mandate and other international cooperation activities

Results of performance of judicial mandate and other international cooperation activities provided by competent foreign bodies may be regarded as evidence if they are consistent with other evidence of criminal cases.

Article 104. Other documents and objects in criminal cases

Circumstances related to criminal cases which are recorded in documents and objects provided by bodies, organizations and individuals may be regarded as evidence. In case such documents and objects have signs specified in Article 89 of this Code, they shall be regarded as exhibits.

Article 105. Collection of exhibits

Exhibits shall be fully collected in a timely manner and their actual conditions shall be precisely described in a written record, which shall be included in case files. In case exhibits cannot be included in case files, they shall be photographed or may be video-recorded, and such photos and video recordings shall be included in case files. Exhibits shall be sealed up and preserved in accordance with law.

Article 106. Disposal of exhibits

1. The disposal of exhibits shall be decided by investigation bodies or bodies assigned to carry out a number of investigation activities if criminal cases are terminated at the stage of investigation; by procuracies if criminal cases are terminated at the stage of prosecution; by chief justices of courts if criminal cases are terminated at the stage of trial preparation; or by trial panels if criminal cases are brought for trial. The execution of decisions on disposal of exhibits shall be recorded in writing.

2. Exhibits shall be disposed of as follows:

a/ Exhibits that are tools and means used for the commission of offenses, or are articles banned from storage or circulation shall be confiscated and forfeited into the state budget or be destroyed.

b/ Exhibits that are money or property gained from the commission of offenses shall be confiscated and forfeited into the state budget;

c/ Exhibits that have no value or use shall be confiscated and destroyed.

3. In the course of investigation, prosecution or trial, competent bodies or persons specified in Clause 1 of this Article may:

a/ Immediately return forfeited or seized property that are not exhibits to their owners or lawful managers;

b/ Immediately return exhibits to their owners or lawful managers if deeming they do not affect the settlement of criminal cases and execution of judgments;

c/ Sell exhibits that are perishable or hard to preserve in accordance with law; or destroy unsalable exhibits;

d/ Hand over exhibits that are wild animals and exotic plants to competent specialized management bodies for handling in accordance with law immediately after expert assessment conclusions are made.

4. Disputes over ownership of exhibits shall be resolved in accordance with the civil procedure law.

Article 107. Collection of electronic media and data

1. Electronic media shall be fully seized in a timely manner and described exactly according to their actual conditions and sealed up immediately after being seized. The sealing and seal-breaking shall be done in accordance with law.

In case it is impossible to seize media storing electronic data, bodies competent to conduct the proceedings shall copy such electronic data into electronic media for preservation like exhibits and, at the same time, request related bodies, organizations and individuals to store and keep intact the copied electronic data, and these bodies, organizations and individuals shall take responsibility before law.

2. When collecting, blocking the reception of, or copying, electronic data from electronic media, computer networks, telecommunications networks or on transmission lines, bodies competent to conduct the proceedings shall make written records thereof for inclusion in case files.

3. When receiving decisions on solicitation of expert assessment of bodies competent to conduct the proceedings, individuals and organizations shall restore, search or assess electronic data.

4. The electronic data restoration, search and expert assessment may be performed only on copies; restoration, search and expert assessment results shall be converted into readable, audible or visible forms.

5. Electronic media and data shall be preserved like exhibits in accordance with this Code. When exhibits that are electronic data are presented, they shall be accompanied by their storing media or soft copies.

Article 108. Examination and assessment of evidence  

1. Each evidence shall be examined and assessed to ascertain its lawfulness, authenticity and relevance to the criminal case. The determination of collected evidence must ensure adequate evidence for the settlement of criminal cases.

2. Persons competent to conduct the proceedings shall, within the ambit of their tasks and powers, examine and assess all collected evidence related to criminal cases in an adequate, objective and comprehensive manner.

Chapter VII

DETERRENT MEASURES, COERCIVE MEASURES

Section I

DETERRENT MEASURES

Article 109. Deterrent measures

1. In order to prevent offenses in time or when there are grounds to believe that criminally charged persons will cause difficulties to the investigation, prosecution or trial, or they will continue to commit offenses, or when it is necessary to secure the judgment execution, bodies and persons competent to conduct the proceedings may, within the ambit of their powers, apply the measure of holding of persons in case of emergency, arrest, holding of persons in custody, temporary detention, bail, depositing of money as security, ban on travel outside one’s residence or postponement of exit.

2. Cases of arrest include arrest of persons held in case of emergency, arrest of offenders caught in the act, arrests of wanted persons, arrest of the accused or defendants for temporary detention, and arrest of persons required to be extradited.

Article 110. Holding of persons in case of emergency

1. A person shall be held in one of the following case of emergency:

a/ There are enough grounds to believe that such person is preparing for commission of a very serious offense or a particularly serious offense;

b/ An accomplice or a victim or a person present at the crime scene has eye-witnessed and confirms that such person is the offender and it is deemed necessary to immediately prevent his/her abscondence;

c/ There is a trace of offense on the body or at the place of residence or workplace or in the vehicle of the suspect and it is deemed necessary to immediately prevent his/her abscondence or destruction of exhibits.

2. The following persons may issue warrants for holding of persons in case of emergency:

a/ Heads and deputy heads of investigation bodies at all levels;

b/ Heads of independent units at the regiment or equivalent level, heads of Border-Guard stations, commanders of Port Border Guard Commands, commanders of provincial-level Border Guard Commands, the director of the Border Guard Reconnaissance Department of the Border Guard, the director of the Drug and Offense Prevention and Control Department of the Border Guard, the head of the Drug and Offense Prevention and Control Task Force of the Border Guard; commanders of regional Marine Police Commands, the director of the Operation and Law Department of the Marine Police, the head of the Drug-Related Offense Prevention and Control Task Force of the Marine Police; and directors of regional Fisheries Surveillance Sub-Departments;

c/ Commanders of aircraft or seagoing ships when these aircraft or seagoing ships have left airfields or ports.

3. A warrant for holding of a person in case of emergency must clearly state the full name and address of the to be-held person, reason and grounds for the holding as prescribed in Clause 1 of this Article, and the contents prescribed in Clause 2, Article 132 of this Code. The execution of warrants for holding of persons in case of emergency must comply with Clause 2, Article 113 of this Code.

4. Within 12 hours after holding a person in case of emergency or receiving a person held in case of emergency, the investigation body or body assigned to carry out a number of investigation activities shall take his/her statements and a person specified at Point a or b, Clause 2 of this Article shall issue a decision on temporary holding or a warrant for arrest of the held person or release him/her. A warrant for arrest of a person held in case of emergency and documents relating to the holding shall be immediately sent to the same-level or competent procuracy for consideration and approval.

After holding a person in case of emergency, a person specified at Point c, Clause 2 of this Article shall immediately escort the held person together with documents relating to the holding to the investigation body of the locality where the airfield or port of first arrival is located. Within 12 hours after receiving a held person, the investigation body shall take his/her statements and a person specified at Point a, Clause 2 of this Article shall issue a decision on holding or a warrant for arrest of the person held in case of emergency or release him/her. A warrant for arrest of a person held in case of emergency and documents relating to the holding shall be immediately sent to the same-level procuracy for consideration and approval.

A warrant for arrest of a person held in case of emergency must clearly state the full name and address of such person, reason and grounds for the holding as prescribed in Clause 1 of this Article, and the contents prescribed in Clause 2, Article 132 of this Code.

5. A dossier for requesting the procuracy to approve a warrant for arrest of a person held in case of emergency must comprise:

a/ A written request for the procuracy’s approval of the arrest warrant;

b/ A warrant for holding of a person in case of emergency, a warrant for arrest of a person held in case of emergency, or a decision on holding of a person in custody;

c/ A written record of the holding of a person in case of emergency;

d/ A written record of statements of a person held in case of emergency;

dd/ Evidence, documents and objects related to the holding of a person in case of emergency.

6. Procuracies shall strictly supervise the grounds for holding persons as prescribed in Clause 1 of this Article. When necessary, a procurator shall personally meet and ask questions to a person held in case of emergency before considering and deciding to approve or disapprove a warrant for arrest of such person. A written record of statements of a person held in case of emergency made by the procurator shall be included in the matter or case file.

Within 12 hours after receiving a dossier of request for approval of a warrant for arrest of a person held in case of emergency, the procuracy shall issue a decision to approve or disapprove such warrant. In case the procuracy decides to disapprove a warrant for arrest of a person held in case of emergency, the person who has issued the warrant or the investigation body that has received the person held in case of emergency shall immediately release him/her.

Article 111. Arrest of offenders caught in the act

1. For a person who is detected or chased while committing an offense or immediately after having committed an offense, any person may arrest and promptly send him/her to the public security office, procuracy or People’s Committee at the nearest place. Such body shall make a written record of the receipt and immediately send the arrestee or notify the arrest to a competent investigation body.

2. When arresting an offender caught in the act, any person may deprive the arrestee of his/her weapons or dangerous tools.

3. In case a public security office of a commune, ward or township or a police station detects, arrests or receives an offender caught in the act, it shall take the possession of or seize weapons or dangerous tools and preserve related documents and objects, make a written record of the arrest, take initial statements and protect the crime scene in accordance with law; and immediately send the arrestee or notify the arrest to a competent investigation body.

Article 112. Arrest of wanted persons

1. For a wanted person, any person may arrest and promptly send him/her to the public security office, procuracy or People’s Committee at the nearest place. Such body shall make a written record of the receipt and immediately send the arrestee or notify the arrest to a competent investigation body.

2. When arresting a wanted person, any person may deprive the arrestee of his/her weapons or dangerous tools.

3. In case a public security office of a commune, ward or township or a police station detects, arrests or receives a wanted person, it shall take the possession of or seize weapons or dangerous tools and preserve related documents and objects, make a written record of the arrest and take initial statements; and promptly send the arrestee or notify the arrest to a competent investigation body.

Article 113. Arrest of the accused or defendants for temporary detention

1. The following persons may issue warrants or decisions for arrest of the accused or defendants for temporary detention:

a/ Heads and deputy heads of investigation bodies at all levels. In this case, arrest warrants shall be approved by same-level procuracies in order to be executed;

b/ Chief procurators and deputy chief procurators of people’s procuracies and military procuracies at all levels;

c/ Chief justices and deputy chief justices of people’s courts and military courts at all levels; trial panels.

2. Arrest warrants, decisions approving arrest warrants and arrest decisions must clearly state full names and addresses of arrestees; reasons for arrest and the contents prescribed in Clause 2, Article 132 of this Code.

Executors of warrants or decisions shall read out such warrants or decisions; explain warrants or decisions and rights and obligations of arrestees and make a written record of the arrest; and hand over arrest warrants or decisions to arrestees.

When a person is arrested at his/her residence, a representative of the administration of the commune, ward or township and other observers must be present. When a person is arrested at the place where he/she works or studies, a representative of the body or organization where he/she works or studies must be present. When a person is arrested at any other place, a representative of the administration of the commune, ward or township where the arrest is made must be present as witness.

3. No arrest may be made at night, except for arrest of an offender caught in the act or of a wanted person.

Article 114. Actions to be immediately taken after holding persons in case of emergency, arresting persons or receiving held persons or arrestees

1. Immediately after holding a person in case of emergency, arresting a person or receiving a held person or an arrestee, an investigation body or a body assigned to carry out a number of investigation activities shall take his/her statements and shall, within 12 hours, issue a decision to hold in custody or release the arrestee.

2. After taking statements of a person arrested under a pursuit warrant, the investigation body that has received him/her shall immediately notify such to the body that has issued the pursuit warrant for coming to receive the arrestee. After receiving the arrestee, the body that has issued the pursuit warrant shall issue a decision to cease the pursuit.

In case the body that has issued the pursuit warrant cannot immediately come to receive the arrestee, the investigation body that has received the arrestee shall, after taking his/her statements, immediately issue a decision on temporary holding of such person in custody and immediately notify such to the body that has issued the pursuit warrant; if the body that has issued the pursuit warrant still fails to come to receive the arrestee when the custody duration expires, the investigation body that has received the arrestee shall extend the custody duration and immediately send the extension decision enclosed with related documents to the same-level procuracy for consideration and approval.

In case the body that has issued the pursuit warrant and is competent to arrest persons for temporary detention cannot immediately come to receive the arrestee, it shall immediately issue a temporary detention warrant and send the warrant, after it is approved by the same-level procuracy, to the investigation body that has received the arrestee. After receiving the temporary detention warrant, the investigation body that has received the arrestee shall immediately send him/her to the nearest detention camp.

3. In case an arrestee is subject to several pursuit decisions, the investigation body that has received the arrestee shall transfer him/her to the nearest body that has issued one of those pursuit decisions.

Article 115. Written records of holding of persons in case of emergency, written records of arrest of persons

1. Executors of warrants for holding of persons in case of emergency, or arrest warrants or decisions shall make written records in any circumstances.

A written record must clearly state the time, date and place of holding or arrest and place of its making; actions taken and developments in the course of execution of the holding warrant or arrest warrant or decision, temporarily seized documents and objects, health conditions and opinions or complaints of the held person or arrestee, and have the contents prescribed in Article 133 of this Code.

The record shall be read to the held person or arrestee and witness. The held person or arrestee, executor of the holding warrant or arrest warrant or decision and witness shall all sign the record; if any of them holds opinions different from or disagrees with the contents of the record, he/she may write such in the record and sign it.

The seizure of documents and objects of the held person or arrestee must comply with this Code.

2. Upon delivery and receipt of a held person or an arrestee, a written record shall be made.

In addition to the contents prescribed in Clause 1 of this Article, a written record of delivery and receipt must also clearly state the handover of the written record of taking of statements, collected documents and objects, health conditions of the held person or arrestee, and happenings at the time of delivery and receipt.

Article 116. Notices of holding of persons in case of emergency or arrest of persons

After holding or arresting a person, the issuer of the holding warrant or arrest warrant or decision shall immediately notify the holding or arrest to the family of the held person or arrestee, the administration of the commune, ward or township where he/she resides or the body or organization where he/she works or studies.

Within 24 hours after receiving a held person or arrestee, the investigation body that has received him/her shall notify the holding or arrest to his/her family, the administration of the commune, ward or township where he/she resides or the body or organization where he/she works or studies. In case the held person or arrestee is a foreign citizen, the investigation body that has received him/her shall notify the holding or arrest to the Vietnamese diplomatic agency for notification to the diplomatic mission of the country of which the held person or arrestee is a citizen.

If the notification impedes the pursuit and arrest of another person or the investigation, after such impediment no longer exists, the issuer of the holding warrant or arrest warrant or decision and the investigation body that has received the held person or arrestee shall immediately notify such.

Article 117. Holding of persons in custody

1. Custody may apply to persons held in case of emergency, arrested offenders caught in the act, offenders who have confessed or surrendered themselves or persons arrested under pursuit warrants.

2. Persons competent to issue holding warrants specified in Clause 2, Article 110 of this Code may issue custody decisions.

A custody decision must clearly state the full name and address of the person to be held in custody, reason for custody, time and date of starting the custody and time and date of expiration of the custody duration, and have the contents specified in Clause 2, Article 132 of this Code. Custody decisions shall be handed to persons held in custody.

3. Executors of custody decisions shall notify and explain the rights and obligations of persons held in custody prescribed in Article 59 of this Code.

4. Within 12 hours after issuing a custody decision, the decision issuer shall send the decision enclosed with documents serving as grounds for the custody to the same-level or competent procuracy. If deeming that the custody is ungrounded or unnecessary, the procuracy shall issue a decision to cancel the custody decision and the custody decision issuer shall immediately release the person held in custody.

Article 118. Custody time limit

1. The custody time limit is 3 days after an investigation body or a body assigned to carry out a number of investigation activities receives or escorts a held person or an arrestee to its office or after an investigation body issues a decision to hold a self-surrendering or confessing offender in custody.

2. In case of necessity, the issuer of a custody decision may extend the custody time limit for another 3 days at most. In special cases, the issuer of a custody decision may extend the custody time limit for the second time for no more than 3 days.

All cases of extension of the custody time limit shall be approved by the same-level or competent procuracy. Within 12 hours after receiving a dossier of request for extension of the custody time limit, the procuracy shall issue a decision to approve or disapprove the request.

3. During the custody period, if there are insufficient grounds for initiating criminal proceedings against the accused, the investigation body or body assigned to carry out a number of investigation activities shall immediately release the person held in custody. In case the custody time limit has been extended, the procuracy shall immediately release the person held in custody.

4. The custody duration shall be subtracted from the temporary detention time limit. One custody day shall be counted as one temporary detention day.

Article 119. Temporary detention

1. Temporary detention may apply to an accused or a defendant charged with a particularly serious offense or very serious offense.

2. Temporary detention may apply to an accused or a defendant charged with a serious offense or less serious offense punishable under the Penal Code by imprisonment for over 2 years and there are grounds to believe that he/she:

a/ Has been subject to another deterrent measure but still commits a violation;

b/ Has no clear residence or his/her personal background is unidentifiable;

c/ Has absconded and is arrested under a pursuit warrant or shows signs of abscondence; 

d/ Continues to commit an offense or shows signs of continuing to commit an offense;

dd/ Commits an act of buying off, forcing or inciting another person to make untruthful statements or declarations or provide untruthful documents; destroys or falsifies evidence, documents or objects of the criminal case, disperses property related to the case; intimidates, controls or takes revenge on witnesses, victims, offense denouncers and their relatives.

3. Temporary detention may apply to an accused or a defendant charged with a less serious offense punishable under the Penal Code by imprisonment for up to 2 years if he/she continues to commit an offense or has absconded and is arrested under a pursuit decision.

4. An accused or a defendant who is a pregnant woman or nursing a child aged under 36 months, is an old and feeble person, or suffers a serious illness and has a residence and a clear background shall not be detained but be subject to another deterrent measure, except when he/she:

a/ Has absconded and is arrested under a pursuit decision;

b/ Continues to commit an offense;

c/ Commits an act of buying off, forcing or inciting another person to make untruthful statements or declarations or provide untruthful documents; destroys or falsifies evidence, documents or objects of the case, disperses property related to the case; intimidates, controls or takes revenge on witnesses, victims, offense denouncers and their relatives;

d/ Is charged for an offense infringing upon the national security and there are sufficient grounds to believe that he/she will be detrimental to the national security unless he/she is detained.

5. Competent persons specified in Clause 1, Article 113 of this Code may issue temporary detention warrants or decisions. Temporary detention warrants issued by persons specified at Point a, Clause 1, Article 113 of this Code shall be approved by same-level procuracies in order to be executed. Within 3 days after receiving a temporary detention warrant, a request for consideration and approval, and a file related to the temporary detention, a procuracy shall issue a decision to approve or disapprove the temporary detention. The procuracy shall return the file to the investigation body immediately after completing the consideration and approval.

6. Investigation bodies shall check detainees’ identity cards and immediately notify such to their families and administrations of the communes, wards or townships where such detainees reside or the bodies or organizations where they work or study. 

Article 120. Care for relatives and preservation of property of persons held in custody or detainees

1. In case a person held in custody or a detainee has a relative who is disabled, old and feeble or has a mental defect without anyone to look after, the body that has issued the custody decision or temporary detention warrant or decision shall assign such person to another relative of his/hers for care. In case the person held in custody or detainee has no other relatives, the body that has issued the custody decision or temporary detention warrant or decision shall assign such person to the administration of the commune, ward or township where he/she lives for care. The care for and nurturing of children of persons held in custody or detainees must comply with the Law on Enforcement of Custody and Temporary Detention.

2. In case a person held in custody or detainee has a house or other property that is preserved by nobody, the body that has issued the custody decision or temporary detention warrant or decision shall apply preservation measures.

3. Bodies that have issued custody decisions or temporary detention warrants or decisions shall notify persons held in custody or detainees of the care for and nurturing of their relatives and preservation of their property. The notification shall be made in writing and included in case files.

Article 121. Bail

1. Bail is a deterrent measure replacing temporary detention. Depending on the nature and level of danger to the society of acts and on the personal background of the accused or defendants, investigation bodies, procuracies or courts may decide to let them be out on bail.

2. Bodies or organizations may stand bail for the accused or defendants who are their employees or members. Bodies or organizations that stand bail shall make written pledges bearing certification by their heads.

Individuals who are aged at least full 18 years, have strictly abided by law and have good personal backgrounds, stable incomes and conditions for managing bailed persons may stand bail for the accused or defendants who are their relatives, and in this case at least two persons are required to stand bail. Individuals who stand bail shall make written pledges bearing certification by administrations of communes, wards or townships where they reside or by bodies or organizations where they work or study.

In written pledges, bodies, organizations or individuals that stand bail shall undertake not to let the accused or defendants breach the obligations prescribed in Clause 3 of this Article. Bodies, organizations or individuals that stand bail shall be notified of circumstances of criminal cases related to the bail.

3. An accused or a defendant who is bailed shall make a written pledge to perform the following obligations:

a/ To be present in response to a summons, unless he/she cannot do so due to a force majeure event or an external obstacle;

b/ To refrain from absconding or continuing to commit an offense;

c/ To refrain from buying off, forcing or inciting another person to make false statements or declarations or provide untruthful documents; to refrain from destroying or falsifying evidence, documents and objects of the case, or dispersing property related to the case; to refrain from intimidating, controlling or taking revenge on witnesses, victims, offense denouncers and their relatives.

In case the accused or defendant breaches the pledged obligations specified in this Clause, he/she shall be temporarily detained.

4. Competent persons specified in Clause 1, Article 113 of this Code and judges presiding over court hearings may issue bail decisions. Decisions of persons specified at Point a, Clause 1, Article 113 of this Code shall be approved by same-level procuracies in order to be executed.

5. The bail time limit must not exceed the investigation, prosecution or trial time limit prescribed in this Code. The bail time limit for a person sentenced to imprisonment must not exceed the period from the time his/her imprisonment sentence is pronounced to the time such person starts serving the sentence.

6. Bodies, organizations or individuals that stand bail but let the bailed accused or defendants breach the pledged obligations shall, depending on the nature and seriousness of their violations, be fined in accordance with law. 

Article 122. Depositing of money as security

1. Depositing of money as security is a deterrent measure replacing temporary detention. Depending on the nature and level of danger to the society of acts and on the personal details and property conditions of the accused or defendants, investigation bodies, procuracies or courts may decide to allow them or their relatives to deposit money as security.

2. An accused or a defendant who deposits money as security shall make a written pledge to perform the following obligations:

a/ To be present in response to a summons, unless he/she cannot do so due to a force majeure event or an external obstacle;

b/ To refrain from absconding or continuing to commit an offense;

c/ To refrain from buying off, forcing or inciting another person to make false statements or declarations or provide untruthful documents; to refrain from destroying or falsifying evidence, documents and objects of the case, or dispersing property related to the case; to refrain from intimidating, controlling or taking revenge on witnesses, victims, offense denouncers and their relatives.

In case the accused or defendant breaches the pledged obligations specified in this Clause, he/she shall be temporarily detained and the deposited money amount shall be forfeited into the state budget.

3. Competent persons specified in Clause 1, Article 113 of this Code and judges presiding over court hearings may issue decisions on depositing of money as security. Decisions of persons specified at Point a, Clause 1, Article 113 of this Code shall be approved by same-level procuracies in order to be executed.

4. The money-depositing time limit must not exceed the investigation, prosecution or trial time limit prescribed in this Code. The money-depositing time limit for a person sentenced to imprisonment must not exceed the period from the time his/her imprisonment sentence is pronounced to the time such person starts serving the sentence. For the accused or defendants who have fulfilled the pledged obligations, procuracies or courts shall return their deposited money amounts to them.

5. Relatives of the accused or defendants allowed by investigation bodies, procuracies or courts to deposit money as security shall make written pledges not to let such accused or defendants breach the obligations specified in Clause 2 of this Article. If they fail to do so, their deposited money amounts shall be forfeited into the state budget. When making written pledges, these persons shall be notified of circumstances of criminal cases related to the accused or defendants.

6. The Minister of Public Security shall assume the prime responsibility for, and coordinate with the Procurator General of the Supreme People’s Procuracy, Chief Justice of the Supreme People’s Court and Minister of National Defense in, prescribing in detail the order and procedures for depositing money, money amounts required to be deposited, custody and refund of deposited money amounts and forfeiture of these amounts into the state budget.

Article 123. Ban on travel outside place of residence

1. Ban on travel outside place of residence is a deterrent measure applicable to the accused or defendants having clear places of residence and clear backgrounds in order to ensure their presence in response to summonses of investigation bodies, procuracies or courts.

2. An accused or a defendants banned from traveling outside his/her place of residence shall make a written pledge to perform the following obligations:

a/ To refrain from traveling outside his/her place of residence without permission of the body that has imposed the ban;

b/ To be present in response to a summons, unless he/she cannot do so due to a force majeure event or an external obstacle;

c/ To refrain from absconding or continuing to commit an offense;

d/ To refrain from buying off, forcing or inciting another person to make false statements or declarations or provide untruthful documents; to refrain from destroying or falsifying evidence, documents and objects of the case, or dispersing property related to the case; to refrain from intimidating, controlling or taking revenge on witnesses, victims, offense denouncers and their relatives.

In case the accused or defendant breaches the pledged obligations specified in this Clause, he/she shall be temporarily detained.

3. Competent persons specified in Clause 1, Article 113 of this Code, judges presiding over court hearings and heads of border-guard stations may impose the ban on travel outside place of residence.

4. The time limit for a ban on travel outside place of residence must not exceed the investigation, prosecution or trial time limit prescribed in this Code. The time limit for a ban on travel outside the place of residence for a person sentenced to imprisonment must not exceed the period from the time his/her imprisonment sentence is pronounced to the time such person starts serving the sentence.

5. The person who has imposed the ban on travel outside place of residence shall notify the application of such ban to the administration of the commune, ward or township where the accused or defendant resides or the military unit managing him/her and deliver the accused or defendant to such administration or military unit for management and monitoring.

In case an accused or a defendant has to temporarily travel outside his/her place of residence due to a force majeure event or an external obstacle, he/she shall obtain consent from the administration of the commune, ward or township where he/she resides or the military unit managing him/her and permission from the person who has imposed the ban.

6. If an accused or a defendant breaches the pledged obligations, the administration of the commune, ward or township where he/she resides or the military unit managing him/her shall immediately notify such to the body that has imposed the ban for handling according to its competence.

Article 124. Postponement of exit

1. The exit of the following persons may be postponed when there are grounds to believe that their exit shows signs of abscondence:

a/ Persons against whom denunciations or criminal case initiation proposals are made and who, through examination or verification, are suspected with sufficient grounds of having committed offenses and it is deemed necessary to immediately prevent them from abscondence or destroying evidence;

b/ The accused or defendants.

2. Competent persons specified in Clause 1, Article 113 of this Code and judges presiding over court hearings may decide on exit postponement. Exit postponement decisions of persons specified at Point a, Clause 1, Article 113 of this Code shall be immediately notified to same-level procuracies before being executed.

3. The exit postponement time limit must not exceed the time limit for processing criminal information, initiation, investigation, prosecution or trial of a criminal case prescribed in this Code. The exit postponement time limit for a person sentenced to imprisonment must not exceed the period from the time his/her imprisonment sentence is pronounced to the time such person starts serving the sentence.

Article 125. Cancellation or replacement of deterrent measures

1. All deterrent measures which are being applied shall be cancelled in one of the following cases:

a/ A decision not to initiate a criminal case is issued;

b/ The investigation or case is ceased;

c/ The investigation or case against the accused is ceased;

d/ The defendant is pronounced by the court to be innocent, exempt from penal liability or penalties, or sentenced to a suspended sentence, or given a warning, fine or non-custodial reform penalty.

2. An investigation body, a procuracy or court may cancel a deterrent measure when finding such measure is no longer necessary or deeming that such measure can be replaced with another deterrent measure.

The cancellation of a deterrent measure or replacement of a deterrent measure with another deterrent measure approved by a procuracy at the stage of investigation shall be decided by that procuracy. Within 10 days before the expiration of the time limit for application of a deterrent measure, except for the custody measure approved by the procuracy, the body that has requested the application of such deterrent measure shall notify such to the procuracy for decision on cancellation of such deterrent measure or replacement of such measure with another.

Section II

COERCIVE MEASURES

Article 126. Coercive measures

In order to ensure the initiation of criminal cases, investigation, prosecution, trial and execution of judgments within their competence, bodies and persons competent to conduct the proceedings may apply the measures of police escort, accompanied escort, distraint of property and freezing of account.

Article 127. Police escort and accompanied escort

1. Police escort is applicable to persons held in case of emergency and criminally charged persons.

2. Accompanied escort is applicable to:

a/ Witnesses who are absent in response to summons not due to a force majeure event or an external obstacle;

b/ Victims who refuse expert assessment under expert assessment-soliciting decisions of bodies competent to conduct the proceedings not due to a force majeure event or an external obstacle;

c/ Persons against whom denunciations or criminal case initiation proposals are made and who, through examination or verification, are determined with sufficient grounds to be involved in criminal acts against which criminal cases are initiated, and fail to be present, although having been summoned, not due to a force majeure event or an external obstacle.

3. Investigators, heads of bodies assigned to carry out a number of investigation activities, procurators, judges presiding over court hearings and trial panels may issue decisions on police escort or accompanied escort.

4. A decision on police escort or accompanied escort must clearly state the full name, date of birth and place of residence of the person subject to escort; time when and place where such person must be present, and have the contents specified in Clause 2, Article 132 of this Code.

5. Executors of decisions on police escort or accompanied escort shall read out and explain such decisions and make a written record of police escort or accompanied escort as prescribed in Article 133 of this Code.

Competent bodies of the People’s Public Security Force and People’s Army shall organize the execution of decisions on police escort or accompanied escort.

6. It is prohibited to commence police escort or accompanied escort of persons at night; it is prohibited to apply police escort or accompanied escort to persons who are old and feeble or seriously ill as certified by a health establishment.

Article 128. Distraint of property

1. Distraint of property may be applied only to the accused or defendants charged with offenses for which fines may be imposed or property may be confiscated or for the purpose of securing the payment of compensations for damage under the Penal Code.

2. Competent persons specified in Clause 1, Article 113 of this Code and judges presiding over court hearings may issue warrants for distraint of property. Warrants for distraint of property issued by persons specified at Point a, Clause 1, Article 113 of this Code shall be immediately notified to same-level procuracies before being executed.

3. Only portions of property equivalent to fine amounts to be imposed or which may be confiscated or used to secure the payment of compensations for damage may be distrained. Distrained property shall be handed over to their owners or lawful managers or their relatives for preservation. Persons assigned to preserve distrained property who consume, transfer, fraudulently exchange, hide or destroy such property shall bear penal liability in accordance with the Penal Code.

4. When the distraint of property is performed, the following persons must be present:

a/ The accused, defendant or persons aged at least full 18 years in his/her family or his/her representative;  

b/ A representative of the administration of the commune, ward or township where the distrained property is located;

c/ Observers.

Persons performing the distraint shall make a written record clearly stating the name and state of each distrained property item. Such record shall be made under Article 178 of this Code and read to persons present at the place of distraint before being signed by all of these persons. Opinions and complaints of persons specified at Point a of this Clause and related to the distraint shall be written in the record which must bear signatures of such persons and persons performing the distraint.

A written record of distraint shall be made in four copies, including one to be immediately handed over to the person specified at Point a of this Clause after the distraint is completed, one to be immediately delivered to the administration of the commune, ward or township where the distrained property is located, one to be sent to the same-level procuracy, and another to be included in the case file.

Article 129. Freezing of account 

1. Freezing of account may be applied only to persons charged with offenses for which fines may be imposed or property may be confiscated or for the purpose of securing the payment of compensations for damage under the Penal Code when there are grounds to believe that such persons have accounts at credit institutions or the State Treasury. Accounts of other persons may also be frozen if there are grounds to believe that money amounts on such accounts are related to criminal acts of criminally charged persons.

2. Competent persons specified in Clause 1, Article 113 of this Code and judges presiding over court hearings may issue warrants for freezing of account. Warrants for freezing of accounts of persons specified at Point a, Clause 1, Article 113 of this Code shall be immediately notified to same-level procuracies before being executed.

3. Only money amounts on accounts equal to fine amounts to be imposed or which may be confiscated or used to secure the payment of compensations for damage may be frozen. Persons assigned to execute account-freezing warrants and manage frozen accounts who defreeze such accounts shall bear penal liability in accordance with the Penal Code.

4. When freezing an account, a body competent to conduct the proceedings shall deliver the account-freezing decision to the credit institution or State Treasury managing the account of the criminally charged person or accounts of other persons related to the criminal act of the criminally charged person. The delivery and receipt of an account-freezing warrant shall be recorded in writing as prescribed in Article 178 of this Code.

Immediately after receiving an account-freezing warrant, the credit institution or State Treasury managing the account of an arrestee, a person held in custody, an accused or a defendant or accounts of other persons related to the criminal act of such arrestee, persons held in custody, accused or defendant, shall immediately freeze the account(s) and make a written record of the account freezing.

A written record of account freezing shall be made in five copies, including one to be immediately handed over to the criminally charged person, one to be immediately handed over to the person related to the criminally charged person, one to be sent to the same-level procuracy, one to be included in the case file, and another to be kept at the credit institution or State Treasury.

Article 130. Cancellation of the measure of distraint of property or freezing of account

1. The measure of distraint of property or freezing of account being applied shall be cancelled in one of the following cases:

a/ The investigation or case is ceased;

b/ The investigation or case against the accused is ceased;

c/ The defendant is pronounced by the court to be innocent;

d/ The defendant is neither fined nor compelled to pay compensations for damage or does not have his/her property confiscated.

2. Investigation bodies, procuracies or courts may cancel the measure of distraint of property or freezing of account when deeming it no longer necessary.

The cancellation or replacement of the measure of distraint of property or freezing of account at the stage of investigation or prosecution shall be notified to the procuracy before being decided.

Chapter VIII

CASE FILES, PROCEDURAL DOCUMENTS, TIME LIMITS AND LEGAL COSTS

Article 131. Case files

1. When conducting the proceedings at the stage of initiation of criminal cases or investigation, investigation bodies shall make case files.

2. A case file must comprise:

a/ Warrants, decisions and requests of the investigation body and procuracy;

b/ Procedural documents made by the investigation body and procuracy;

c/ Evidence and documents relating to the case.

3. Evidence and documents collected by the procuracy or court at the stage of prosecution or trial shall be included in the case file.

4. A case file must have a list of documents therein. Such list must show titles, record entry numbers and characteristics of these documents (if any). In case a document is added to the case file, such document shall be additionally listed. Case files shall be managed, preserved and used in accordance with law.

Article 132. Procedural documents

1. Procedural documents include warrants, decisions, requests, written investigation conclusions, indictments, judgments and other documents made in the proceedings according to set forms.

2. A procedural document must clearly state:

a/ Its serial number, date and place of issuance;

b/ Grounds for its issuance;

c/ Its contents;

d/ Full name, position and signature of its issuer, and an appended stamp.

Article 133. Written records

1. For all proceedings conducted, written records thereof shall be made according to a set form.

A written record must clearly state the place, time and date where and when the proceedings are conducted, the starting time and ending time, specific proceedings, person competent to conduct the proceedings, participants in or persons involved in, the proceedings, and their complaints, requests or proposals.

2. A written record must bear signatures of persons specified by this Code. Any modifications, additions, exclusions or erasures in a written record shall be certified by signatures of such persons.

In case a proceeding participant refuses to sign a written record, the record maker shall clearly state the reason for such refusal and invite an observer to sign the record.

In case a proceeding participant is illiterate, the record maker shall read the record to such person in the presence of an observer. The record shall bear the fingerprint of such proceeding participant and signature of the observer.

In case a proceeding participant is unable to sign the written record due to his/her mental or physical defect or for another reason, the record maker shall read the record to such person in the presence of an observer and other proceeding participants. The record must bear the signature of the observer.

Article 134. Counting of time limits

1. Time limits prescribed in this Code shall be counted in hours, days, months and years. Night time means the time from 22:00 hours to 6:00 hours of the following day.

A time limit counted in days will expire at 24:00 hours of its last day.

A time limit counted in months will expire on the same date of the subsequent month; if that month has no same date, the time limit will expire on the last day of that month; if a time limit expires on a holiday, the first following working day shall be counted as the last day of that time limit.

When counting the custody or temporary detention time limit, the date of expiration of that time limit shall be stated in the warrant or decision. For a time limit counted in months, a month is meant to have 30 days.

2. In case an application or a paper is sent by post, the time limit shall be counted based on the postmark of the sending place. If an application or a paper is sent through a custody house, temporary detention camp or prison, the time limit shall be counted from the date the head of the custody house or cell of the border-guard station, superintendent of the temporary detention camp or prison receives such application or paper.

Article 135. Legal costs

1. Legal costs in the criminal proceedings include court fees, fees and procedural expenses.

2. Court fees include criminal first-instance and appellate court fees and civil first-instance and appellate court fees in criminal cases.

3. Fees include the fee for issuance of copies of judgments, rulings, decisions and other papers of bodies competent to conduct the proceedings and other fees prescribed by law.

4. Procedural expenses include:

a/ Expense for witnesses, interpreters, translators and defense counsels in case of appointment of defense counsels;

b/ Expenses for expert assessment and property valuation;

c/ Other expenses prescribed by law.

Article 136. Responsibility to pay procedural expenses and fees

1. Expenses specified in Clause 4, Article 135 of this Code shall be paid by soliciting, requesting or appointing bodies and persons. In case state legal aid centers appoint defense counsels, such expenses shall be paid by these centers.

2. Court fees shall be incurred by convicts or the State in accordance with law. Convicts shall pay court fees under court rulings. Court fee levels and application grounds shall be clearly stated in the court’s judgments or rulings.

3. In case a criminal case is initiated at the request of the victim, if the defendant is pronounced not guilty by the court or the case is ceased on the grounds specified in Clause 2, Article 155 of this Code, the victim shall pay the court fee.

4. For procedural activities requested by proceeding participants, fees and expenses shall be paid in accordance with law.

Article 137. Issuance, delivery, transfer, sending, posting or notification of procedural documents

1. The issuance, delivery, transfer, sending, posting or notification of procedural documents shall be performed by the following methods:

a/ Direct issuance, delivery or transfer;

b/ Sending by post;

c/ Public posting;

d/ Announcement in the mass media.

2. The issuance, delivery, transfer, sending, posting or notification of procedural documents shall be performed in accordance with this Code.

Article 138. Procedures for direct issuance, delivery or transfer of procedural documents

1. Persons performing the issuance, delivery or transfer of procedural documents shall personally hand over such documents to recipients. Recipients shall sign delivery and receipt records or registers. The time for counting a procedural time limit is the date when a recipient signs a delivery and receipt record or register.

2. In case a procedural document recipient is absent, such procedural document may be delivered to a relative of his/hers who has full civil act capacity and is required to sign the delivery and receipt register and pledge to hand over the document to the recipient as soon as possible. The date when the relative of the recipient signs the delivery and receipt register is the date of issuance or delivery of the procedural document.

In case a procedural document cannot be delivered to a recipient under this Clause, such document may be delivered to the administration of the commune, ward or township where he/she resides or to the body or organization where he/she works or studies for subsequent handover to him/her. The body or organization shall immediately notify the result of the issuance, delivery or sending of the procedural document to the body competent to conduct the proceedings that has so requested. The date of signing by the body or organization is the date of issuance or delivery of the procedural document.

3. In case a procedural document recipient is absent or his/her address is unclear, the person performing the issuance or delivery shall make a written record of the failure to issue or deliver the document, bearing the certification by the representative of the body or organization where the recipient resides, works or studies.

In case a procedural document recipient refuses to receive such document, the person performing the issuance or delivery shall make a written record of the refusal bearing the certification by the administration of the commune, ward or township where he/she resides or by the body or organization where he/she works or studies.

4. In case a procedural document recipient is a body or an organization, such procedural document shall be directly handed over to its representative who shall sign the delivery and receipt record or register. The time for counting the procedural time limit is the date when he/she signs the delivery and receipt records or register.

Article 139. Procedures for sending procedural documents by post

The sending of procedural documents by post must be via registered mail and the receipt thereof shall be certified by procedural document recipients. Documents bearing such certification shall be sent to bodies competent to conduct the proceedings. The time for counting the procedural time limit is the date when the recipient certifies the receipt of the procedural document.

Article 140. Procedures for public posting of procedural documents

1. Public posting of a procedural document shall be applied when the address of the recipient is unclear or his/her whereabouts is unknown.

2. A procedural document shall be publicly posted up at the office of the People’s Committee of the commune, ward or township where the recipient last resided or at the office of the body or organization where he/she last worked or studied.

A procedural document shall be publicly posted up for at least 15 days. The public posting of a procedural document shall be recorded in writing, clearly stating the date of posting.

The time for counting the procedural time limit is the date when the posting is ended.

Article 141. Procedures for announcement of procedural documents in the mass media

1. Announcement of procedural documents in the mass media shall be applied when the public posting thereof brings no result or in other cases specified by law.

2. Announcement in the mass media shall be published in a central daily for 3 consecutive issues or broadcast on a central radio or television for 3 times in 3 consecutive days.

The time limit for counting the procedural time limit is the date when the announcement is ended.

Article 142. Responsibility to issue, deliver, transfer, send, publicly post or announce procedural documents

1. Bodies or persons competent to conduct the proceedings shall issue, deliver, transfer, send, post or announce procedural documents to proceeding participants, and related bodies, organizations and individuals in accordance with this Code.

2. Persons who are assigned to issue, deliver, transfer, send, publicly post or notify procedural documents but fail to do so or fail to properly do so in accordance with this Code shall, depending on the nature and severity of their violations, be disciplined or administratively sanctioned in accordance with law.

Part TWO

INITIATION AND INVESTIGATION OF CRIMINAL CASES

Chapter IX

INITIATION OF CRIMINAL CASES

Article 143. Grounds for initiation of criminal cases

A criminal case shall be initiated only when criminal signs have been identified. The identification of criminal signs shall be based on the following grounds:

1. A denunciation of an individual;

2. Information reported by a body, an organization or individual;

3. Information reported in the mass media;

4. A criminal case initiation proposal of a state body;

5. A criminal sign directly detected by a body competent to conduct the proceedings;

6. Confession by the criminal offender.

Article 144. Offense denunciations, reported criminal information, criminal case initiation proposals

1. Offense denunciation means the detection and reporting by an individual of an act showing criminal signs to a competent body.

2. Reported criminal information means information about a case or matter showing criminal signs reported by a body, an organization or individual to a competent body or information about an offense in the mass media.

3. Criminal case initiation proposal means a written proposal made a competent state body and enclosed with related evidence and documents to an investigation body or a procuracy competent to consider and settle a case or matter showing criminal signs.

4. Offense denunciations or reported criminal information may be in verbal or written form.

5. Persons who intentionally denounce offenses or report criminal information in an untruthful manner shall, depending on the nature and severity of their violations, be disciplined, administratively sanctioned or examined for penal liability in accordance with law.

Article 145. Responsibility to receive and competence to process offense denunciations, reported criminal information and criminal case initiation proposals

1. All offense denunciations, reported criminal information and criminal case initiation proposals shall be fully received and promptly processed. Bodies and organizations responsible for receiving offense denunciations, reported criminal information and criminal case initiation proposals may not refuse to receive them.

2. Bodies and organizations responsible for receiving offense denunciations, reported criminal information and criminal case initiation proposals include:

a/ Investigation bodies and procuracies receiving offense denunciations, reported criminal information and criminal case initiation proposals;

b/ Other bodies and organizations receiving offense denunciations and reported criminal information.

3. Competence to process offense denunciations, reported criminal information and criminal case initiation proposals:

a/ Investigation bodies shall process offense denunciations, reported criminal information and criminal case initiation proposals according to their investigating competence;

b/ Bodies assigned to carry out a number of investigation activities shall process offense denunciations and reported criminal information according to their investigating competence;

c/ Procuracies shall process offense denunciations, reported criminal information and criminal case initiation proposals in case they detect that investigation bodies or bodies assigned to carry out a number of investigation activities commit serious violations of law in their activities of examining and verifying such denunciations, reported information or proposals or show signs of leaving some offenses unpunished and failing to remedy such violations although having been so requested in writing by procuracies.

4. Bodies competent to process offense denunciations, reported criminal information and criminal case initiation proposals shall notify processing results to denouncing, reporting or proposing individuals, bodies and organizations.

Article 146. Procedures for receiving offense denunciations, reported criminal information and criminal case initiation proposals

1. When a body, an organization or individual directly denounces or reports information about an offense or proposes the initiation of a criminal case, a competent investigation body, procuracy or body assigned to carry out a number of investigation activities specified in Clause 2, Article 145 of this Code shall make a written record of the receipt and write it in the receipt register; an audio or audiovisual recording of the receipt may be made.

In case an offense denunciation, reported criminal information or a criminal case initiation proposal is sent by post or communicated via telephone or another medium of communication, the receipt thereof shall be recorded in a receipt register.

2. If finding that an offense denunciation, reported criminal information or a criminal case initiation proposal falls beyond its processing competence, an investigation body or a body assigned to carry out a number of investigation activities shall immediately transfer such denunciation, information or proposal and its enclosed related documents to a competent investigation body.

The procuracy shall immediately transfer offense denunciations, reported criminal information and criminal case initiation proposals and their enclosed related documents to a competent investigation body.

In the case specified at Point c, Clause 3, Article 145 of this Code, within 5 days after the procuracy makes a request, a competent body that has received and is processing an offense denunciation, reported criminal information or a criminal case initiation proposal shall transfer the related file to the procuracy for consideration and processing.

3. Public security offices of wards and townships and public security stations shall receive offense denunciations and reported criminal information, make a written record of the receipt, perform preliminary examination and verification, and immediately transfer such denunciations and information enclosed with related documents and objects to a competent investigation body.

Public security offices of communes shall receive offense denunciations and reported criminal information, make a written record of the receipt, take initial statements, and immediately transfer such denunciations and information enclosed with related documents and objects to a competent investigation body.

4. When receiving offense denunciations or reported criminal information, other bodies and organizations shall immediately transfer such denunciations and information to a competent investigation body. In case of emergency, they may report such to an investigation body via telephone or another medium of communication and shall later make written reports.

5. Within 3 days after receiving an offense denunciation or reported criminal information or a criminal case initiation proposal, an investigation body or a body assigned to carry out a number of investigation activities shall notify the receipt in writing to the same-level or competent procuracy.

Article 147. Time limit and procedures for processing offense denunciations, reported criminal information and criminal case initiation proposals

1. Within 20 days after receiving an offense denunciation, reported criminal information or a criminal case initiation proposal, an investigation body or a body assigned to carry out a number of investigation activities shall examine and verify it and issue one of the following decisions:

a/ Decision to initiate a criminal case;

b/ Decision not to initiate a criminal case;

c/ Decision to suspend the processing of such denunciation, information or proposal.

2. In case a denounced case or matter, reported criminal information or criminal case initiation proposal involves complicated circumstances or the examination and verification thereof are required to be performed in many places, the time limit for processing the denunciation, information or proposal may be extended up to 2 months at most. In case the examination and verification cannot be completed within the time limit prescribed in this Clause, the chief procurator of the same-level or competent procuracy may extend such time limit once for no more than 2 months.

At least 5 days before the expiration of the examination and verification time limit prescribed in this Clause, the investigation body or body assigned to carry out a number of investigation activities shall request in writing the same-level or competent procuracy to extend such time limit.

3. When processing an offense denunciation, reported criminal information or a criminal case initiation proposal, a competent body may:

a/ Collect information, documents and objects from related bodies, organizations and individuals for examination and verification of reported information;

b/ Perform scene examination;

c/ Perform autopsy;

d/ Solicit expert assessment or request property valuation.

4. The order, procedures and time limit for processing by a procuracy of an offense denunciation, reported criminal information or a criminal case initiation proposal must comply with this Article.

Article 148. Suspension of processing of offense denunciations, reported criminal information or criminal case initiation proposals

1. Upon the expiration of the time limit prescribed in Article 147 of this Code, a body competent to process offense denunciations, reported criminal information and criminal case initiation proposals shall decide to suspend the processing of an offense denunciation, reported criminal information or a criminal case initiation proposal if:

a/ It has solicited expert assessment or requested property valuation or judicial assistance from a foreign country but received no result;

b/ It has requested bodies, organizations or individuals to provide important documents and objects decisive to the initiation or non-initiation of a criminal case but received no result.

2. Within 24 hours after issuing a decision to suspend the processing of an offense denunciation, reported criminal information or a criminal case initiation proposal, an investigation body or a body assigned to carry out a number of investigation activities shall send the suspension decision enclosed with related documents to the same-level or competent procuracy for supervision, and then send such decision to the denouncing, reporting or proposing body, organization or individual.

In case the suspension decision is groundless, the procuracy shall issue a decision to cancel it for continued processing. Within 24 hours after issuing a decision to cancel the suspension decision, the procuracy shall send it to the investigation body or body assigned to carry out a number of investigation activities and the denouncing, reporting or proposing body, organization or individual. The time limit for processing the offense denunciation, reported criminal information or criminal case initiation proposal is one month after the investigation body or body assigned to carry out a number of investigation activities receives the decision cancelling the suspension decision.

3. In case of suspension of processing of an offense denunciation, reported criminal information or a criminal case initiation proposal, the expert assessment, property valuation or judicial assistance will be further performed until results are obtained.

Article 149. Resumption of processing of offense denunciations, reported criminal information and criminal case initiation proposals

1. When the reason for the suspension of processing of an offense denunciation, reported criminal information or a criminal case initiation proposal no longer exists, the investigation body or body assigned to carry out a number of investigation activities shall issue a decision to resume the processing of such denunciation, information or proposal. The time limit for processing an offense denunciation, reported criminal information or a criminal case initiation proposal is one month from the date of issuance of the resumption decision.

2. Within 3 days after issuing a decision to resume the processing of an offense denunciation, reported criminal information or a criminal case initiation proposal, the investigation body or body assigned to carry out a number of investigation activities shall send it to the same-level or competent procuracy and the denouncing, reporting or proposing body, organization or individual.

Article 150. Settlement of disputes over competence to process offense denunciations, reported criminal information or criminal case initiation proposals

1. A dispute over competence to process an offense denunciation, reported criminal information or a criminal case initiation proposal shall be settled directly by the immediate higher-level procuracy. A dispute over competence of bodies assigned to carry out a number of investigation activities to process an offense denunciation, reported criminal information or a criminal case initiation proposal shall be settled by a competent procuracy.

2. A dispute over competence to process an offense denunciation, reported criminal information or a criminal case initiation proposal among provincial-level investigation bodies or among military zone-level military investigation bodies shall be settled by the Supreme People’s Procuracy or Central Military Procuracy. A dispute over competence to process an offense denunciation, reported criminal information or a criminal case initiation proposal among district-level investigation bodies of different provinces or centrally run cities or among regional military investigation bodies of different military zones shall be settled by the provincial-level people’s procuracy or military zone-level military procuracy that first received such denunciation, information or proposal.

3. A dispute over competence to an offense denunciation, reported criminal information or a criminal case initiation proposal among investigation bodies of the People’s Public Security, People’s Army and Supreme People’s Procuracy shall be settled by the Procurator General of the Supreme People’s Procuracy.

Article 151. Settlement of cases showing criminal signs detected directly by bodies competent to conduct the proceedings

Bodies competent to conduct the proceedings that directly detect criminal signs shall decide to initiate criminal cases according to their competence or transfer them to competent investigation bodies for handling.

Article 152. Confession or self-surrender by offenders

1. When an offender comes to give a confession or surrender himself/herself, the receiving body or organization shall make a written record thereof, clearly stating the full name, age, occupation, place of residence and statements of the confessing or self-surrendering offender. The body or organization receiving such offender shall immediately notify such to the investigation body or procuracy.

2. If determining that the offense committed by the confessing or self-surrendering offender does not fall under its investigating competence, the investigation body receiving the confessing or self-surrendering offender shall immediately notify such offender to a competent investigation body for acceptance and handling.

3. Within 24 hours after receiving a confessing or self-surrendering offender, a competent investigation body shall notify the reception in writing to the same-level procuracy.

Article 153. Competence to initiate criminal cases

1. An investigation body may decide to initiate a criminal case for any case or matter showing criminal signs, except cases and matters already accepted and currently settled by bodies assigned to carry out a number of investigation activities, procuracies or trial panels under Clauses 2, 3 and 4 of this Article.

2. A body assigned to carry out a number of investigation activities shall issue a decision to initiate a criminal case in the case specified in Article 164 of this Code.

3. A procuracy may issue a decision to initiate a criminal case when:

a/ It has cancelled the decision not to initiate a criminal case of an investigation body or a body assigned to carry out a number of investigation activities;

b/ It has directly processed an offense denunciation, reported criminal information, or a criminal case initiation proposal;

c/ It has directly detected criminal signs or executes a criminal case initiation request of a trial panel.

4. A trial panel may issue a decision to initiate a criminal case or request a procuracy to initiate a criminal case if it detects, through the trial at a court hearing, any offense left unpublished.

Article 154. Decisions to initiate criminal cases 

1. A decision to initiate a criminal case must clearly state grounds for initiation, applied articles and clauses of the Penal Code, and the details specified in Clause 2, Article 132 of this Code.

2. Within 24 hours after issuing a decision to initiate a criminal case, a procuracy shall send it to a competent investigation body for investigation.

Within 24 hours after issuing a decision to initiate a criminal case, an investigation body or a body assigned to carry out a number of investigation activities shall send it together with related documents to a competent procuracy for supervision of the initiation.

Within 24 hours after issuing a decision to initiate a criminal case, a court shall send it together with related documents to the same-level procuracy.

Article 155. Initiation of criminal cases at the request of victims

1. Criminal cases involving the offenses prescribed in Clauses 1 of Articles 134, 135, 136, 138, 139, 141, 143, 155, 156 and 226 of the Penal Code may only be initiated at the request of victims or representatives of victims who are aged under 18 years or have mental or physical defects or decease.

2. In case the requester for initiation of a criminal case withdraws his/her request, the case shall be ceased. In case there are grounds to determine that the requester has been forced or coerced to withdraw the request against his/her own will, the investigation body, procuracy or court may, although such requester has withdrawn the request, continue conducting the proceedings for the case.

3. Victims or their representatives who have withdrawn their criminal case initiation requests may not file their requests again, unless the withdrawal is due to force or coercion.  

Article 156. Change or supplementation of decisions to initiate criminal cases

1. An investigation body, a body assigned to carry out a number of investigation activities or a procuracy shall issue a decision to change or supplement a criminal case initiation decision when having grounds to determine that the initiated criminal case is not true to the committed criminal act or when having grounds to determine that there remain other offenses not yet dealt with, respectively.

2. Within 24 hours after issuing a decision to change or supplement a criminal case initiation decision, an investigation body or a body assigned to carry out a number of investigation activities shall send it together with documents relating to the change or supplementation of the criminal case initiation decision to the same-level or competent procuracy for supervision of the initiation.

Within 24 hours after issuing a decision to change or supplement a criminal case initiation decision, a procuracy shall send it to the investigation body for investigation.

Article 157. Grounds for non-initiation of criminal cases

No criminal case may be initiated when one of the following grounds exists:

1. There is no offense;

2. The committed act does not constitute an offense;

3. The person committing the socially dangerous act has not yet reached the age to bear penal liability;

4. The criminal act has been committed by a person whose act has been adjudicated by a legally effective judgment or whose case has been ceased by a legally effective ruling;

5. The statute of limitations for penal liability examination has expired;

6. The offender has been granted general amnesty;

7. The person committing the socially dangerous act has died, unless a reopening review of the case is required for other persons;

8. For the offenses prescribed in Clauses 1 of Articles 134, 135, 136, 138, 139, 141, 143, 155, 156 and 226 of the Penal Code, for which victims or their representatives do not request the initiation of a criminal case.

Article 158. Decisions not to initiate criminal cases, decisions to cancel criminal case initiation decisions

1. When there is one of the grounds specified in Article 157 of this Code, a person with competence to initiate criminal cases shall issue a decision not to initiate a criminal case; if he/she has initiated a criminal case, he/she shall issue a decision to cancel the criminal case initiation decision and notify the reason for the cancellation to the body, organization or individual that has denounced or reported the offense or proposed the initiation of a criminal case; if deeming it necessary to settle the case by another measure, he/she shall transfer the case file to a competent body for settlement.

A decision not to initiate a criminal case or decision to cancel a decision to initiate a criminal case and related documents shall be sent to the same-level or competent procuracy within 24 hours after its issuance.

2. The body, organization or individual that has denounced or reported an offense may file a complaint about the decision not to initiate a criminal case. The competence and procedures for settling such complaint must comply with the provisions of Chapter XXXIII of this Code.

Article 159. Tasks and powers of procuracies when exercising the right to prosecution in the processing of criminal information

1. To approve or disapprove the arrest of persons held in case of emergency or extension of the time limit for holding persons in custody; to approve or disapprove other measures which restrict human rights or citizens’ rights in the processing of criminal information in accordance with this Code.

2. When necessary, to request the examination and verification of criminal information and request the body competent to process criminal information to perform the examination and verification.

3. To decide on the extension of the time limit for processing denunciations, reported criminal information or criminal case initiation proposals; to decide to initiate criminal cases.

4. To request investigation bodies or bodies assigned to carry out a number of investigation activities to initiate criminal cases.

5. To personally process denunciations, reported criminal information or criminal case initiation proposals in the cases specified in this Code.

6. To cancel unlawful decisions on holding of persons in custody, decisions to or not to initiate criminal cases, decisions to suspend the processing of criminal information, and other unlawful procedural decisions of investigation bodies or bodies assigned to carry out a number of investigation activities.

7. To perform other tasks and exercise other powers in the exercise of the right to prosecution in accordance with this Code in order to leave no committed offenses unpunished and avoid injustice done against the innocent.

Article 160. Tasks and powers of procuracies in receiving and supervising the processing of criminal information

1. To receive all defense denunciations, reported criminal information and criminal case initiation proposals of bodies, organizations and individuals, and receive and immediately deliver confessing or self-surrendering offenders to competent investigation bodies for handling.

2. To supervise the receipt, personally supervise, and supervise the examination, verification and compilation of files for, the processing of criminal information by investigation bodies or bodies assigned to carry out a number of investigation activities; to supervise the suspension of the processing of criminal information; supervise the resumption of the processing of criminal information.

3. When detecting that the receipt or processing of criminal information is inadequate or unlawful, to request investigation bodies or bodies assigned to carry out a number of investigation activities to:

a/ Receive, examine, verify or issue decisions to process criminal information in an adequate and lawful manner;

b/ Examine the receipt and processing of criminal information and notify results to procuracies;

c/ Provide documents on violations of law in the receipt and processing of criminal information;

d/ Remedy violations of law and strictly handle violators;

dd/ Request replacement of investigators or investigation officers.

4. To settle disputes over the competence to process criminal information.

5. To request investigation bodies or bodies assigned to carry out a number of investigation activities to furnish relevant documents for supervising the processing of criminal information.

6. To perform other tasks and exercise other powers in supervising the receipt and processing of criminal information in accordance with this Code.

Article 161. Tasks and powers of procuracies when exercising the right to prosecution and supervising the initiation of criminal cases

1. When exercising the right to prosecution in the initiation of criminal cases, procuracies have the following tasks and powers:

a/ To request investigation bodies or bodies assigned to carry out a number of investigation activities to initiate or to change or supplement decisions to initiate criminal cases;

b/ To cancel ungrounded or unlawful decisions to initiate, decisions to change or supplement decisions to initiate criminal cases, or decisions not to initiate criminal cases;

c/ To file protests against ungrounded decisions of trial panels to initiate criminal cases with immediate higher-level courts;

d/ To initiate, or to change or supplement decisions to initiate, criminal cases in the cases specified in this Code;

dd/ To perform other tasks and exercise other powers in order to exercise the right to prosecution in the initiation of criminal cases in accordance with this Code.

2. When supervising the initiation of criminal cases, procuracies have the following tasks and powers:

a/ To supervise the observance of law in the initiation of criminal cases by investigation bodies or bodies assigned to carry out a number of investigation activities, ensuring that criminal cases are initiated against all detected offenses and the initiation of criminal cases is grounded and lawful;

b/ To request investigation bodies or bodies assigned to carry out a number of investigation activities to furnish relevant documents for supervising the initiation of criminal cases;

c/ To perform other tasks and exercise other powers in supervising the initiation of criminal cases in accordance with this Code.

Article 162. Responsibilities of investigation bodies or bodies assigned to carry out a number of investigation activities in executing requests or decisions of procuracies in the initiation of criminal cases

1. Investigation bodies or bodies assigned to carry out a number of investigation activities shall execute requests or decisions of procuracies in the initiation of criminal cases.

2. Investigation bodies or bodies assigned to carry out a number of investigation activities shall execute decisions referred to in Clauses 1 and 6, Article 159, and at Point b, Clause 1, Article 161, of this Code despite their disagreement with those decisions but may file petitions with immediate higher-level procuracies. Within 20 days after receiving a petition from an investigation body or within 5 days after receiving a petition from a body assigned to carry out a number of investigation activities, the immediate higher-level procuracy shall consider and settle such petition and notify the body that has filed the petition of the settlement result.

Chapter X

GENERAL PROVISIONS ON INVESTIGATION OF
CRIMINAL CASES

Article 163. Investigating competence

1. Investigation bodies of the People’s Public Security shall investigate all offenses, except those falling within the investigating competence of the investigation bodies in the People’s Army or of the investigation body of the Supreme People’s Procuracy.

2. Investigation bodies of the People’s Army shall investigate offenses falling under the jurisdiction of military courts.

3. The investigation body of the Supreme People’s Procuracy and the investigation body of the Central Military Procuracy shall investigate offenses infringing upon judicial activities, and corruption- or position-related offenses prescribed in Chapters XXIII and XXIV of the Penal Code which are committed in judicial activities by cadres or civil servants of investigation bodies, courts, procuracies or judgment enforcement bodies, and persons competent to implement judicial activities.

4. Investigation bodies are competent to investigate criminal cases involving offenses committed in their respective geographical areas. In case an offense is committed in different places or the place where an offense is committed is unidentified, the investigation shall be conducted by the investigation body of the place where the offense is detected or where the accused resides or is arrested.

5. The decentralization of investigating competence is prescribed as follows:

a/ District-level investigation bodies and regional military investigation bodies shall investigate criminal cases involving offenses falling under the jurisdiction of district-level people’s courts or regional military courts;

b/ Provincial-level investigation bodies shall investigate criminal cases involving offenses falling under the jurisdiction of provincial-level people’s courts or cases falling within the investigating competence of district-level investigation bodies committed in many districts, towns, provincial cities or cities of centrally run cities, organized offenses or offenses involving foreign elements which they deem it necessary to directly investigate;

Military zone-level military investigation bodies shall investigate criminal cases involving offenses falling under the jurisdiction of military zone-level military courts or cases falling within the investigating competence of regional investigation bodies which they deem it necessary to directly investigate;

c/ The investigation bodies of the Ministry of Public Security and the Ministry of National Defense shall investigate criminal cases involving particularly serious offenses cancelled by the Judicial Council of the Supreme People’s Court for re-investigation; criminal cases involving particularly serious or complicated offenses committed in many provinces or centrally run cities or related to many countries which they deem it necessary to directly investigate.

Article 164. Tasks and powers of bodies of the border guard, customs, forest protection force, marine police, fisheries surveillance force and other bodies of the People’s Public Security and People’s Army that are assigned to carry out a number of investigation activities

1. When detecting criminal acts in the fields and geographical areas under their management, bodies of the border guard, customs, forest protection force, marine police and fisheries surveillance force that are assigned to carry out a number of investigation activities have the following tasks and powers:

a/ For less serious offenses committed by offenders who are caught in the act and whose personal backgrounds are clear and involving clear evidence, to issue decisions to initiate criminal cases and initiate criminal proceedings against the accused, conduct investigation and transfer case files to competent procuracies within one month after the date of issuance of decisions to initiate criminal cases;

b/ For serious offenses, very serious offenses or particularly serious offenses or less serious but complicated offenses, to issue decisions to initiate criminal cases, carry out initial investigation activities and transfer case files to competent investigation bodies within 7 days after issuing the decisions to initiate criminal cases.

2. In the People’s Public Security and People’s Army, in addition to the investigation bodies prescribed in Article 163 of this Code, if other bodies assigned to carry out a number of investigation activities detect cases showing criminal signs while performing their tasks, they may initiate criminal cases, carry out initial investigation activities and transfer case files to competent investigation bodies within 7 days after issuing the decisions to initiate criminal cases.

3. Bodies of the border guard, customs, forest protection force, marine police, fisheries surveillance force and other bodies of the People’s Public Security and People’s Army that are assigned to carry out a number of investigation activities shall perform the tasks and exercise the powers prescribed in Articles 39 and 40 of this Code and strictly comply with the principles, order and procedures for investigation activities as prescribed in this Code. Procuracies shall exercise the right to prosecution and supervise the observance of law by these bodies in their investigation activities.

4. The specific investigating competence of bodies of the border guard, customs, forest protection force, marine police, fisheries surveillance force and other bodies of the People’s Public Security and People’s Army that are assigned to carry out a number of investigation activities must comply with the Law on Organization of Criminal Investigation Bodies.

Article 165. Tasks and powers of procuracies in exercising the right to prosecution at the stage of investigation of criminal cases

1. To request investigation bodies or bodies assigned to carry out a number of investigation activities to initiate criminal cases or change or supplement decisions to initiate criminal cases or initiate criminal proceedings against the accused.

2. To approve or cancel decisions to initiate criminal proceedings against the accused or decisions to change or supplement decisions to initiate criminal proceedings against the accused which are ungrounded and unlawful.

3. To initiate criminal cases or initiate proceedings against the accused or change or supplement decisions to initiate criminal cases or initiate criminal proceedings against the accused in the cases specified in this Code.

4. To approve or disapprove warrants to arrest people held in case of emergency, extension of the custody time limit, temporary detention, bail, depositing of money as security, search, forfeiture, seizure of objects, correspondence, telegraphs, postal parcels and items, and application of special procedural investigation measures; to approve or disapprove other ungrounded and unlawful procedural decisions of investigation bodies or bodies assigned to carry out a number of investigation activities in accordance with this Code; to cancel ungrounded and unlawful procedural decisions of investigation bodies or bodies assigned to carry out a number of investigation activities. In case of disapproval or cancellation, decisions on disapproval or cancellation must clearly state reasons.

5. To decide to apply, change or cancel deterrent measures or coercive measures in accordance with this Code.

6. To set investigation requirements and request investigation bodies or bodies assigned to carry out a number of investigation activities to conduct investigation to identify offenses and offenders; to request investigation bodies to pursue the accused or apply special procedural investigation measures.

7. To directly carry out a number of investigation activities for the purpose of checking or adding documents or evidence when considering and approving warrants or decisions of investigation bodies or bodies assigned to carry out a number of investigation activities, or when detecting cases showing signs of injustice against the innocent or omission of offenses or violations of law which remain unaddressed although procuracies have made written requests, or for the purpose of checking or adding documents or evidence when deciding on the prosecution.

8. To initiate criminal cases when detecting criminal acts of competent persons in the processing of denunciations, reported criminal information or criminal case initiation proposals and in the initiation of criminal cases or investigation; to request investigation bodies to initiate criminal cases when detecting criminal acts of competent persons in the processing of denunciations, reported criminal information or criminal case initiation proposals and in the initiation of criminal cases or investigation.

9. To decide on the extension of the investigation or temporary detention time limit; to decide to transfer cases or apply summary procedure or the measure of compulsory medical treatment; to cancel decisions to separate or join criminal cases.

10. To perform other tasks and exercise other powers in exercising the right to prosecution in accordance with this Code.   

Article 166. Tasks and powers of procuracies in supervising the investigation of criminal cases

1. To supervise the observance of law in the initiation of criminal cases, investigation, and making of case files by investigation bodies or bodies assigned to carry out a number of investigation activities.

2. To supervise criminal procedure activities of proceeding participants; to request or recommend competent bodies, organizations or individuals to strictly handle proceeding participants that commit violations of law.

3. To settle disputes over the investigating competence.

4. To request investigation bodies or bodies assigned to carry out a number of investigation activities to furnish relevant documents for supervising the observance of law in the initiation of criminal cases and investigation when necessary.

5. Upon detecting that an investigation is inadequate or conducted in violation of law, to request the investigation body or body assigned to carry out a number of investigation bodies to:

a/ Carry out investigation activities in a lawful manner;

b/ Examine the investigation and notify the examination result to the procuracy;

c/ Furnish documents relevant to unlawful procedural acts or decisions in the investigation.

6. To request or recommend investigation bodies or bodies assigned to carry out a number of investigation activities to remedy their violations in the initiation of criminal cases or investigation.

7. To request heads of investigation bodies or bodies assigned to carry out a number of investigation activities to replace investigators or investigation officers or strictly handle investigators or investigation officers who commit violations of law in proceedings.

8. To recommend concerned bodies or organizations to apply measures to prevent offenses and violations of law.

9. To perform other tasks and exercise other powers in supervising the investigation of criminal cases in accordance with this Code.

Article 167. Responsibility of investigation bodies or bodies assigned to carry out a number of investigation activities to execute requests or decisions of procuracies at the stage of investigation

1. Investigation bodies or bodies assigned to carry out a number of investigation activities shall execute requests or decisions of procuracies at the stage of investigation.

2. If disagreeing with decisions specified In Clauses 4 and 5, Article 165 of this Code, investigation bodies or bodies assigned to carry out a number of investigation activities shall still execute them but may make recommendations to the immediate higher-level procuracies. Within 20 days after receiving a recommendation of an investigation body or within 5 days after receiving a recommendation of a body assigned to carry out a number of investigation activities, the immediate high-level procuracy shall consider and settle it and notify the settlement result to the recommending body.  

Article 168. Responsibility of bodies, organizations and individuals to execute decisions or requests of investigation bodies, bodies assigned to carry out a number of investigation activities or procuracies

Bodies, organizations and individuals shall strictly execute decisions or requests of investigation bodies, bodies assigned to carry out a number of investigation activities or procuracies at the stage of investigation of criminal cases. Those that fail to do so not due to a force majeure event or an external obstacle shall be handled in accordance with law.

Article 169. Transfer of cases for investigation

1. The same-level procuracy may decide to transfer a case for investigation in one of the following cases:

a/ The same-level investigation body finds the case not falling within its investigating competence and proposes the transfer of the case;

b/ The higher-level investigation body picks up the case for investigation;

c/ The replaced investigator is the head of the investigation body;

d/ The procuracy has requested the transfer of the case but the investigation body fails to transfer it.

2. The transfer of a case out of a province or centrally run city or a military zone shall be decided by the provincial-level procuracy or military zone-level military procuracy.

3. Procedures for transferring a case for investigation according to investigating competence:

a/ Within 3 days after receiving a request of an investigation body, a competent procuracy shall issue a decision to transfer the case;

b/ Within 24 hours after issuing a decision to transfer the case, the procuracy shall send such decision to the investigation body currently conducting the investigation, the investigation body competent to further investigate the case, the accused or his/her representative, defense counsel, victim and competent procuracy.

4. Within 3 days after receiving a decision to transfer a case, the investigation body currently conducting the investigation shall transfer the case file to a competent investigation body for further investigation.

5. The investigation duration shall continue to be counted from the date the investigation body receives the case file until the expiration of the investigation time limit prescribed in this Code. In case the investigation time limit expires but the investigation cannot be concluded, the competent procuracy shall consider and decide to extend the investigation time limit according to the general procedures prescribed in this Code.

Article 170. Joinder or separation of criminal cases for investigation

1. An investigation body may join several offenses or offenders in the same case for investigation according to its competence when:

a/ The accused has committed several offenses;

b/ The accused has committed an offense repeatedly;

c/ Several accused have jointly committed an offense or there are other persons who, together with the accused, harbor or fail to report the offense or consume assets gained by the accused through the commission of the offense.  

2. An investigation body may only separate a case when necessary as the investigation of all offenses cannot be completed early, provided that such separation does not affect the identification of objective and comprehensive facts of the case.

3. A decision to join several criminal cases or separate a criminal case shall be sent to the same-level procuracy within 24 hours after its issuance. In case of disagreeing with a decision of an investigation body to join several criminal cases or separate a criminal case, the procuracy shall issue a decision to cancel such decision, clearly stating the reason.

Article 171. Entrustment of investigation

1. When necessary, an investigation body may entrust another investigation body to carry out a number of investigation activities. An investigation entrustment decision must clearly state specific requirements and shall be sent to the entrusted investigation body and procuracy at the same level as the entrusted investigation body.

2. The entrusted investigation body shall fully perform the entrusted jobs within the time limit set by the entrusting investigation body and take responsibility before law for results of the entrusted investigation. In case the entrusted investigation body fails to conduct the entrusted investigation, it shall immediately send a notice to the entrusting investigation body, clearly stating the reason for failure.

3. The procuracy at the same level as the entrusted investigation body shall exercise the right to prosecution and supervise the performance of investigation activities by the entrusted investigation body and immediately transfer results of the exercise of the right to prosecution and supervision of the entrusted investigation to the procuracy that has entrusted the exercise of the right to prosecution and supervision of investigation.

Article 172. Investigation time limits

1. The time limit for investigating a criminal case is 2 months for less serious offenses, 3 months for serious offenses, or 4 months for very serious offenses and particularly serious offenses, counting from the time of initiation of a criminal case to the time of termination of investigation.

2. When necessary to extend the investigation time limit due to the complexity of a case, at least 10 days before the expiration of the investigation time limit, an investigation body shall request in writing the procuracy to extend the investigation time limit.

The extension of the investigation time limit is prescribed as follows:

a/ For less serious offenses, the investigation time limit may be extended once for no more than 2 months;

b/ For serious offenses, the investigation time limit may be extended twice, for no more than 3 months for the first time and no more than 2 months for the second time;

c/ For very serious offenses, the investigation time limit may be extended twice  for no more than 4 months each;

d/ For particularly serious offenses, the investigation time limit may be extended three times for no more than 4 months each.

3. For particularly serious offenses for which the extended investigation time limit has expired but, due to the very complicated nature of the cases, the investigation cannot be completed, the Procurator General of the Supreme People’s Procuracy may extend the investigation time limit once for no more than 4 months.

For the offenses infringing upon the national security, the Procurator General of the Supreme People’s Procuracy may extend the investigation time limit once more for no more than 4 months.

4. In case of change or supplementation of a decision to initiate a criminal case or joinder of cases, the aggregate investigation time limit must not exceed the time limits prescribed in Clauses 1, 2 and 3 of this Article.

5. Competence of procuracies to extend the investigation time limits:

a/ For less serious offenses, district-level people’s procuracies or regional military procuracies may extend the investigation time limit. For cases received for investigation by provincial-level or military zone-level investigation bodies, provincial-level people’s procuracies or military zone-level military procuracies may extend the investigation time limit;

b/ For serious offenses, district-level people’s procuracies or regional military procuracies may extend the investigation time limit for the first time and second time. For cases received for investigation by provincial- or military zone-level investigation bodies, provincial-level people’s procuracies or military zone-level military procuracies may extend the investigation time limit for the first time and second time;

c/ For very serious offenses, district-level people’s procuracies or regional military procuracies may extend the investigation time limits for the first time; provincial-level people’s procuracies or military zone-level military procuracies may extend the investigation time limit for the second time. For cases received for investigation by provincial-level or military zone-level investigation bodies, provincial-level people’s procuracies or military zone-level military procuracies may extend the investigation time limit for the first time and second time.

d/ For particularly serious offenses, provincial-level people’s procuracies or military zone-level military procuracies may extend the investigation time limit for the first time and second time; the Supreme People’s Procuracy or the Central Military Procuracy may extend the investigation time limit for the third time

6. For cases received for investigation by the investigation body of the Ministry of Public Security, Ministry of National Defense or Supreme People’s Procuracy, the extension of investigation time limits falls within the competence of the Supreme People’s Procuracy or the Central Military Procuracy.

Article 173. Time limits for temporary detention for investigation

1. The time limit for temporary detention of an accused for investigation is 2 months for less serious offenses, 3 months for serious offenses, or 4 months for very serious offenses and particularly serious offenses.

2. For a case involving many complicated circumstances where it is deemed that the investigation should take a longer time and there is no ground to change or cancel the temporary detention measure, at least 10 days before the temporary detention time limit expires, the investigation body shall request in writing the procuracy to extend the temporary detention time limit.

The extension of the temporary detention time limit is prescribed as follows:

a/ For less serious offenses, the temporary detention time limit may be extended once for no more than 1 month;

b/ For serious offenses, the temporary detention time limit may be extended once for no more than 2 months;

c/ For very serious offenses, the temporary detention time limit may be extended once for no more than 3 months;

d/ For particularly serious offenses, the temporary detention time limit may be extended twice, for no more than 4 months each.

3. The competence of procuracies to extend the temporary detention time limit:

a/ District-level people’s procuracies or regional military procuracies may extend the temporary detention time limits for less serious offenses, serious offenses and very serious offenses. For cases received for investigation by provincial-level or military zone-level investigation bodies, provincial-level people’s procuracies or military zone-level military procuracies may extend the temporary detention time limits for less serious offenses, serious offenses and very serious offenses and extend the temporary detention time limit for the first time for particularly serious offenses;

b/ In case the first-time extended temporary detention time limit prescribed at Point a of this Clause expires but the investigation cannot be concluded and there is no ground to change or cancel the temporary detention measure, provincial-level people’s procuracies or military zone-level military procuracies may extend the temporary detention time limit for the second time for particularly serious offenses.

4. For cases received for investigation by the investigation body of the Ministry of Public Security, Ministry of National Defense or Supreme People’s Procuracy, the extension of investigation time limits falls within the competence of the Supreme People’s Procuracy or the Central Military Procuracy.

5. When necessary for the offenses infringing upon the national security, the Procurator General of the Supreme People’s Procuracy may extend the investigation time limit once more for no more than 4 months. Where the extended temporary detention time limit prescribed in this Clause expires but the investigation cannot be concluded and there is no ground to change or cancel the temporary detention measure, the Procurator General of the Supreme People’s Procuracy may extend the temporary detention time limit once more for no more than 1 month for serious offenses, no more than 2 months for very serious offenses or no more than 4 months for particularly serious offenses. In special cases for particularly serious offenses infringing upon the national security where there is no ground to cancel the temporary detention measure, the Procurator General of the Supreme People’s Procuracy may decide on temporary detention until the completion of the investigation.

6. When it is necessary for particularly serious offenses other than those infringing upon the national security and there is no ground to change or cancel the temporary detention measure, the Procurator General of the Supreme People’s Procuracy may extend the investigation time limit once more for no more than 4 months. In special cases where there is no ground to cancel the temporary detention measure, the Procurator General of the Supreme People’s Procuracy may decide on the temporary detention until the completion of the investigation.

7. Within the temporary detention time limit, if deeming it unnecessary to continue the temporary detention, the investigation body shall promptly request the procuracy to cancel the temporary detention measure in order to release the detainee or apply another deterrent measure if deeming it necessary.

Upon the expiration of the temporary detention time limit, the detainee shall be released. If deeming it necessary, the body competent to conduct the proceedings shall apply another deterrent measure. 

Article 174. Time limits for investigation resumption, additional investigation and reinvestigation

1. In case of investigation resumption prescribed in Article 235 of this Code, the time limit for further investigation is 2 months for less serious offenses and serious offenses or 3 months for very serious offenses and particularly serious offenses, counting from the time of issuance of the investigation resumption decisions to the time of completion of the investigation.

When necessary to extend the investigation time limit due to the complexity of the case, at least 10 days before the investigation time limit expires, the investigation body shall request in writing the procuracy to extend the investigation time limit.

The extension of the investigation time limit is prescribed as follows:

a/ For less serious offenses, the investigation time limit may be extended once for no more than 1 month;

b/ For serious offenses and very serious offenses, the investigation time limit may be extended once for no more than 2 months;

c/ For particularly serious offenses, the investigation time limit may be extended once for no more than 3 months.

The competence to extend the investigation time limit for each kind of offense must comply with Clause 5, Article 172 of this Code.

2. For cases returned by procuracies for additional investigation, the time limit for additional investigation is 2 months; for cases returned by courts for additional investigation, the time limit for additional investigation is 1 month. A procuracy may only return a case file for additional investigation no more than twice. The presiding judge may return the case file for additional investigation only once and the trial panel may return the case file for additional investigation only once.

The time limit for additional investigation shall be counted from the date the investigation body receives back the case file and investigation request.

3. For cases returned for reinvestigation, the investigation time limit and extension thereof must comply with Article 172 of this Code.

The investigation time limit shall be counted from the time when the investigation body receives the case file and reinvestigation request.

4. When resuming the investigation or conducting additional investigation or reinvestigation, investigation bodies may apply, change or cancel deterrent measures or coercive measures in accordance with this Code.

When there are grounds prescribed in this Code for applying temporary detention, the temporary detention time limit for investigation resumption or additional investigation must not exceed the time limit for investigation resumption or additional investigation prescribed in Clauses 1 and 2 of this Article.

The temporary detention time limit and extension thereof in case of reinvestigation must comply with Article 173 of this Code.

Article 175. Settlement of requests or proposals of proceeding participants

1. When proceeding participants make requests or proposals on matters related to a case, the investigation body, body assigned to carry out a number of investigation activities or procuracy shall, within the ambit of its respective responsibility, settle such requests or proposals and notify them of settlement results. In case of rejecting such requests or proposals, the investigation body, body assigned to carry out a number of investigation activities or procuracy shall reply, clearly stating the reason.

2. If disagreeing with the settlement result of the investigation body, body assigned to carry out a number of investigation activities or procuracy, proceeding participants may file complaints. The filing and settlement of complaints must comply with the provisions of Chapter XXXIII of this Code.

Article 176. Participation by observers

Observers shall be summoned to observe investigation activities in the cases prescribed in this Code.

Observers shall certify contents and results of tasks performed by persons competent to conduct the proceedings in their presence and may present their personal opinions. Such opinions shall be recorded in writing.

Article 177. Non-disclosure of investigation secrets

In case of necessity to keep investigation secrets, investigators, investigation officers, procurators and controllers shall request proceeding participants not to disclose investigation secrets. Such a request shall be recorded in writing.

Investigators, investigation officers, procurators, controllers and proceeding participants who disclose investigation secrets shall, depending on the nature and severity of their violations, be disciplined, administratively sanctioned or examined for penal liability in accordance with law.

Article 178. Investigation records

When carrying out investigation activities, persons competent to conduct the proceedings shall make written records thereof as prescribed in Article 133 of this Code.

Investigators or investigation officers that have made a written record shall read such record to proceeding participants, explain to them the right to add contents to and give comments on the record. Added opinions and comments shall be written in the record. In case the contents proposed to be added to a written record are rejected, the reason for such rejection shall be clearly stated in the record. Proceeding participants and investigators or investigation officers shall all sign the record.

In case procurators or controllers make a written record, such record shall be made under this Article. Such record shall be immediately handed to investigators for inclusion in case files.

The making of written records at the stage of initiation of criminal cases must comply with this Article.

Chapter XI

INITIATION OF CRIMINAL PROCEEDINGS AGAINST THE ACCUSED AND INTERROGATION OF THE ACCUSED

Article 179. Initiation of criminal proceedings against the accused

1. When having sufficient grounds to determine that an individual or a legal person has committed an act prescribed by the Penal Code as an offense, an investigation body shall issue a decision to initiate criminal proceedings against the accused.

2. A decision to initiate criminal proceedings against the accused must clearly state the time and place of its issuance; full name and position of its issuer; full name, date of birth, nationality, ethnicity, religion, sex, residence and occupation of the accused; the offense the accused is charged with and the article and clause of the Penal Code under which the accused is charged; time and place of commission of the offense, and other circumstances of the offense.

If the accused is charged with many different offenses, the decision to initiate criminal proceedings against him/her must clearly state each offense and the applicable articles and clauses of the Penal Code.

3. Within 24 hours after issuing a decision to initiate criminal proceedings against the accused, an investigation body shall send it and documents relating to the initiation to the same-level procuracy for consideration and approval. Within 3 days after receiving the decision, the procuracy shall issue a decision to approve or cancel such decision or request addition of evidence or documents as a basis for decision on approval, and immediately send its decision to the investigation body.

In case the procuracy requests addition of evidence or documents, within 3 days after receiving additional evidence or documents, it shall issue a decision to approve or cancel the decision on initiation of criminal proceedings against the accused.

4. In case it detects that there is a person who has committed an act prescribed by the Penal Code as an offense and against whom criminal proceedings have not yet been initiated, the procuracy shall request the investigation body to issue a decision to initiate criminal proceedings against the accused or issue by itself such a decision if the investigation body fails to execute its request. Within 24 hours after issuing a decision to initiate criminal proceedings against the accused, the procuracy shall send it to the investigation body for investigation.

After receiving the case file and investigation conclusions, if the procuracy detects that there is another person who has committed an act prescribed by the Penal Code as an offense in the case and against whom criminal proceedings have not yet been initiated, the procuracy shall issue a decision to initiate criminal proceedings against the accused and return the case file to the investigation body for additional investigation.

5. After receiving the decision of the procuracy to approve the decision to initiate criminal proceedings against the accused or to initiate criminal proceedings against the accused, the investigation body shall immediately hand such decision to the accused and explain his/her rights and obligations.

After receiving the decision to approve the decision to initiate criminal proceedings against the accused, the investigation body shall take photos and make the personal identification record and fingerprint record sheet of the accused and include them in the case file.

The handing and receipt of the above decisions shall be recorded in writing as prescribed in Article 133 of this Code.

Article 180. Change or supplementation of decisions to initiate criminal proceedings against the accused

1. An investigation body or a procuracy shall change a decision to initiate criminal proceedings against the accused in either of the following cases:

a/ While conducting investigation, it has grounds to determine that the act committed by the accused does not constitute the offense for which criminal proceedings have been initiated against him/her;

b/ The decision to initiate criminal proceedings against the accused incorrectly states the full name, age or personal identification of the accused. 

2. An investigation body or a procuracy shall supplement a decision to initiate criminal proceedings against the accused if having grounds to determine that the accused has also committed another act prescribed by the Penal Code as an offense.

3. Within 24 hours after issuing a decision to change or supplement a decision to initiate criminal proceedings against the accused, an investigation body shall send such decision together with documents relating to the change or supplementation to the same-level procuracy for consideration and approval. Within 3 days after receiving the decision to change or supplement the decision to initiate criminal proceedings against the accused, the procuracy shall decide to approve or cancel such decision or request additional evidence or documents to serve as a basis for decision on approval and immediately send its request to the investigation body.

If it requests additional evidence or documents, the procuracy shall, within 3 days after receiving additional evidence or documents, issue a decision to approve or cancel the decision to change or supplement the decision to initiate criminal proceedings against the accused.

Within 24 hours after issuing a decision to change or supplement a decision to initiate criminal proceedings against the accused, the procuracy shall send it to the investigation body for investigation.

4. The investigation body shall immediately hand to the person against whom criminal proceedings have been initiated the decision to approve or cancel the decision to change or supplement the decision to initiate criminal proceedings against the accused or the procuracy’s decision to change or supplement the decision to initiate criminal proceedings against the accused.

The handing and receipt of the above decisions shall be recorded in writing as prescribed in Article 133 of this Code.

Article 181. Suspension of the accused from his/her incumbent position

When deeming that the accused’s continued holding of his/her current position will cause difficulties to the investigation, an investigation body, a body assigned to carry out a number of investigation activities or a procuracy may propose the agency or organization competent to manage the accused to suspend the accused from holding his/her current position. Within 7 days after receiving such proposal, that agency or organization shall reply in writing the investigation body, body assigned to carry out a number of investigation activities or procuracy that has made the proposal.

Article 182. Summoning of the accused

1. When summoning the accused, investigators shall deliver summonses to them. Such a summons must clearly state the full name and residence of the accused; time, date and place when and where he must be present, time of the meeting and person he/she will meet, and his/her responsibility if he/she is absent not due to a force majeure event or an external obstacle.

2. Summonses to be delivered to the accused shall be sent to administrations of communes, wards or townships where the accused reside or to bodies or organizations where they work or study. Bodies or organizations receiving summonses shall immediately deliver them to the accused.

Upon receiving summonses, the accused shall sign for certification on receipts thereof, clearly writing the time and date of receipt. Summons deliverers shall deliver the summons’ portions containing signatures of the accused to the summoning bodies. If the accused refuse to sign, a written record of the refusal shall be made and sent to the summoning bodies. If the accused are absent, summonses may be handed to their relatives with full civil act capacity who shall sign for certification and hand the summonses to the accused.

3. The accused shall appear in response to summonses. If they are absent not due to a force majeure event or an external obstacle or show signs of abscondence, investigators may issue decisions on police escort of the accused.

4. In case of necessity, procurators may summon the accused. The summoning of the accused must comply with this Article.

Article 183. Interrogation of the accused

1. The interrogation of the accused shall be conducted by an investigator immediately after the decision to initiate criminal proceedings against the accused is issued. The accused may be interrogated at the place of investigation or at his/her residence. Before interrogating the accused, the investigator shall notify the procurator and defense counsel of the time and place of interrogation. When deeming it necessary, the procurator may participate in the interrogation of the accused.

2. Prior to the first interrogation, the investigator shall clearly explain to the accused about their rights and obligations prescribed in Article 60 of this Code. This shall be recorded in writing.

For a case involving many accused, they shall be questioned separately and shall not be allowed to contact one another. The accused may be allowed to write by themselves their statements.

3. Interrogation of the accused may not be conducted at night, except for cases where interrogation cannot be delayed and the reasons therefor shall be clearly recorded in writing.

4. A procurator shall interrogate the accused if the latter claims he/she is innocent or complains about investigation activities or there is a ground to believe that the investigation is unlawful or in another case of necessity. Interrogation of the accused by procurators shall be conducted under this Article.

5. Investigators, investigation officers, procurators or controllers who extort statements from the accused or apply corporal punishment to the accused shall bear penal liability in accordance with the Penal Code.

6. The interrogation of the accused at custody houses, detention camps or offices of investigation bodies or bodies assigned to carry out a number of investigation activities shall be audio-recorded or audio-video-recorded.

The interrogation of the accused at other places shall be audio-recorded or audio-video-recorded at the request of the accused or bodies or persons competent to conduct the proceedings.

Article 184. Written records of interrogation of the accused

1. A written record shall be made for each time of interrogation of the accused.

Written records of interrogation of the accused shall be made under Article 178 of this Code. Such record must contain all statements of the accused, questions and answers. Investigators or investigation officers are prohibited from adding, omitting or modifying by themselves statements of the accused.

2. After the interrogation, investigators or investigation officers shall read the written record to the accused or let the accused read them. In case of supplementing or modifying the record, investigators or investigation officers and the accused shall all sign the record for certification. If the record consists of many pages, the accused shall sign every page. In case the accused write their statements by themselves, investigators or investigation officers and the accused shall all sign such written statements for certification.

3. In case the interrogation of the accused is conducted in the presence of interpreters, investigators or investigation officers shall explain the rights and obligations of the interpreters, and explain to the accused about their right to request replacement of interpreters. Interpreters shall sign every page of the interrogation record.

In case of conducting the interrogation in the presence of defense counsels and lawful representatives of the accused, investigators or investigation officers shall explain to these persons about their rights and obligations in the course of interrogation of the accused. The accused, defense counsels and lawful representatives shall all sign the interrogation record. In case counsel defenses are allowed to question the accused, the record must fully contain the questions of the defense counsels and the answers of the accused.

4. In case a procurator interrogates the accused, a written record shall be made under this Article. Such record shall be immediately handed to investigators for inclusion in the case file.

Chapter XII

TAKING OF STATEMENTS OF WITNESSES, VICTIMS, CIVIL PLAINTIFFS, CIVIL DEFENDANTS, PERSONS WITH INTERESTS AND OBLIGATIONS RELATED TO CRIMINAL CASES, CONFRONTATION AND IDENTIFICATION

Article 185. Summoning of witnesses

1. To summon witnesses for taking their statements, investigators shall send summonses to them.

2. A summons must clearly state the full name and residence of the witness or place where the witness works or studies; time, date and place of appearance of the witness; purpose, contents and time of taking statements; the person whom the witness will meet and his/her responsibility for absence not due to a force majeure event or an external obstacle.

3. Summonses shall be handed as follows:

a/ Summonses shall be handed directly to witnesses or through administrations of communes, wards or townships where they reside or bodies or organizations where they work or study. In any circumstances, signatures are required for the handing and receipt of summonses. Administrations of communes, wards or townships where witnesses reside or bodies or organizations where they work or study shall create conditions for witnesses to perform their obligation;

b/ Summonses of witnesses aged under 18 years shall be handed to their parents or other lawful representatives;

c/ Summonses of witnesses under judicial mandate by foreign countries shall be handed under this Clause and the Law on Mutual Legal Assistance.

4. In case of necessity, procurators may summon witnesses for taking statements. The summoning of witnesses must comply with this Article.

Article 186. Taking of statements of witnesses

1. Statements of witnesses shall be taken at places of investigation or their residences or places where they work or study.

2. For a case involving many witnesses, statements of each witness shall be taken separately and these witnesses shall not be permitted to contact one another in the course of taking statements.

3. Prior to taking statements of witnesses, investigators or investigation officers shall explain to them their rights and obligations under Article 66 of this Code. The explanation shall be recorded in in writing.

4. Before inquiring into contents of cases, investigators shall inquire into relationships between witnesses and the accused, victims and other details related to the personal identifications of witnesses. Before asking questions, investigators shall request witnesses to truthfully and willingly relate or write what they know about the cases.

5. When finding the taking of statements by investigators neither objective nor lawful or deeming it necessary to clarify evidence and documents so as to decide on approval or disapproval of procedural decisions of investigation bodies or decide on prosecution, procurators may take statements of witnesses. The taking of statements of witnesses must comply with this Article.

Article 187. Written records of statements of witnesses

Written records of statements of witnesses shall be made under Article 178 of this Code.

The taking of statements of witnesses may be audio-recorded or audio-video-recorded.

Article 188. Summoning and taking of statements of victims and involved parties

The summoning and taking of statements of victims and involved parties must comply with Articles 185, 186 and 187 of this Code.

The taking of statements of victims and involved parties may be audio-recorded or audio-video-recorded.

Article 189. Confrontation

1. In case contradictions exist in statements of two or more persons despite that other investigation measures have been taken, investigators shall hold a confrontation. Before holding a confrontation, an investigator shall notify such to the same-level procuracy for assigning a procurator to supervise the confrontation. Such procurator must be present to supervise the confrontation. If he/she is absent, his/her absence shall be stated in the written record of the confrontation.

2. If a witness or victim participates in a confrontation, before holding the confrontation an investigator shall explain to him/her about his/her responsibility if he/she refuses or shirks to give statements or deliberately gives false statements. This shall be recorded in writing.

3. To begin a confrontation, an investigator shall ask about relationships between persons participating in the confrontation, then about circumstances required to be clarified. After hearing statements in the confrontation, the investigator may further ask questions to each person.

In the course of confrontation, investigators may present evidence, documents or objects related to the case; and may let persons participating in the confrontation ask one another and their questions and answers shall be recorded in writing.

Only after persons participating in the confrontation give their statements, shall their previous statements be repeated.

4. A confrontation shall be recorded in writing under Article 178 of this Code. A confrontation may be audio-recorded or audio-video-recorded.

5. In case of necessity, procurators may hold a confrontation. Such confrontation must comply with this Article.

Article 190. Identification

1. When necessary, investigators may invite persons or give objects or photos to witnesses, victims or the accused for identification.

The number of persons, photos or objects presented for identification must be at least three and their appearances must be similar, except the case of identification of corpses.

Before conducting an identification, an investigator shall notify such to the same-level procuracy for the latter to assign a procurator to supervise the identification. Such procurator must be present to supervise the identification. If he/she is absent, his/her absence shall be stated in the written record of the identification.

2. The following persons shall participate in an identification:

a/ Witnesses, victims or the accused;

b/ Observers.

3. If witnesses or victims act as identifying persons, before conducting an identification, an investigator shall explain to them their responsibility if they refuse or shirk to give statements or deliberately give false statements. Such explanation shall be recorded in writing.    

4. Investigators shall ask in advance identifying persons about details, traces and characteristics based on which these persons can make the identification.

In the course of identification, investigators may not ask questions of suggestive nature. After an identifying person identifies a person, an object or a photo among those presented for identification, an investigator shall request him/her to explain which traces or characteristics he/she has relied on for identifying such person, object or photo.

5. An identification shall be recorded in writing under Articles 178 of this Code. Such written record must clearly state personal identification details and health conditions of identifying persons and persons shown for identification; characteristics of objects or photos presented for identification; statements and presentations given by identifying persons; lighting conditions when the identification is held.

Article 191. Voice recognition

1. When necessary, an investigator may let victims, witnesses or arrestees, persons held in custody or the accused recognize voices.

The number of voices presented for recognition must be at least three and have similar timbre and pitch.

Before conducting a voice recognition, an investigator shall notify such to the same-level procuracy for the latter to assign a procurator to supervise the voice recognition. Such procurator must be present to supervise the voice recognition. If he/she is absent, his/her absence shall be stated in the written record of the voice recognition.

2. The following persons shall participate in a voice recognition:

a/ Sound appraisers;

b/ Persons required to recognize voices;

c/ Persons whose voices are presented for recognition, except the case in which the voice recognition is conducted via a sound recorder;

d/ Observers.

3. If witnesses or victims are requested to recognize voices, before conducting a voice recognition, an investigator shall explain to them their responsibility if they refuse or shirk to give statements or deliberately give false statements. Such explanation shall be recorded in a writing.    

4. Investigators shall ask in advance persons requested to recognize voices about characteristics which these persons can rely on to recognize voices.

In the course of voice recognition, investigators may not ask questions of suggestive nature. After a person requested to recognize voices recognizes a voice among those shown for recognition, an investigator shall request him/her to explain which characteristics he/she has relied on for recognizing such voice.

5. A voice recognition shall be recorded in writing under Articles 178 of this Code. Such written record must clearly state personal identification details and health conditions of persons requested to recognize voices and of persons whose voices are shown for recognition; characteristics of voices shown for recognition; statements given by persons recognizing voices; and the spatial condition when the voice recognition is held.

Chapter XIII

SEARCH, FORFEITURE AND SEIZURE OF
DOCUMENTS AND OBJECTS

Article 192. Grounds for body search, search of residences, workplaces, places, vehicles, documents, objects, correspondence, telegraphs, postal parcels and items, electronic data

1. Body search and search of residences, workplaces, places or vehicles may be conducted only when there are grounds to believe that on such bodies or in such residences, workplaces, places or vehicles there are instruments and means of  commission of offenses, documents, objects or property gained from the commission of offenses or other objects, electronic data or documents relating to criminal cases.

Search of residences, workplaces, places or vehicles shall also be conducted in case of necessity to detect wanted persons or search and rescue victims.    

2. When there are grounds to believe that in correspondence, telegraphs, postal parcels and items or electronic data there are instruments and means of commission of offenses, documents, objects or property related to criminal cases, such correspondence, telegraphs, postal parcels and items or electronic data may be searched.

Article 193. Competence to issue search warrants

1. Competent persons defined in Clause 1, Article 113 of this Code may issue search warrants. Search warrants issued by persons defined in Clause 2, Article 35, and Point a, Clause 1,
Article 113, of this Code shall be approved by competent procuracies in order to be executed.

2. In case of emergency, competent persons defined in Clause 2, Article 110 of this Code may issue search warrants. Within 24 hours after the completion of a search, the issuer of a search warrant shall notify such in writing to the same-level procuracy or a procuracy competent to exercise the right to prosecution and supervise the investigation of the matter or case.

3. Before conducting a search, an investigator shall notify the same-level procuracy of the time and place of search for the latter to assign a procurator to supervise the search, except the case of urgent search. Such procurator must be present to supervise the search. If he/she is absent, the reason for his/her absence shall be stated in the written record of the search.

4. In all cases, a search shall be recorded in writing under Article 178 of this Code and such written record shall be included in case files.

Article 194. Body search

1. To start a body search, the search warrant executor shall read the warrant and hand it to the to be-searched person for reading; and explain to the to be-searched person and other persons present about their rights and obligations.

The person conducting a body search shall request the to be-searched person to give out documents and objects related to the case; if the to be-searched person refuses to do so or gives out inadequate documents and objects related to the case, he/she shall be searched.

2. The body search of a person shall be conducted by a person of the same sex and to the witness of a person also of the same sex. The body search must not harm the life, health, property, honor and dignity of searched persons.

3. Body search may be conducted without a search warrant in case of arrest of a person or when there are grounds to confirm that the person present at the place of search hides on his/her body weapons, evidence, documents or objects related to the criminal case.

Article 195. Search of residences, workplaces, places or vehicles

1. Search of the residence of a person shall be conducted in the presence of such person or a person aged at least full 18 years sharing the residence, a representative of the commune, ward or township administration and an observer. In case the person owning the residence or person aged at least full 18 years sharing the residence is deliberately absent, has absconded or cannot be present for another reason while the search cannot be delayed, the search shall be conducted in the presence of a representative of the commune, ward or township administration and two observers.

Search of residences must not be started at night, except the case of emergency in which the reason for night search shall be stated in the written record of the search.

2. Search of the workplace of a person shall be conducted in the presence of such person, except the case in which it cannot be delayed and the reason for search shall be stated in the written record of the search.

Search of the workplace of a person shall be conducted to the witness of a representative of the agency or organization where such person works. In case no representative of the agency or organization where such person works is present, the search shall still be conducted in the presence of a representative of the administration of the commune, ward or township where the search is conducted, and of two observers. 

3. When the search of a place is conducted, the presence of a representative of the administration of the commune, ward or township where the search is conducted and of an observer is required.

4. The search of a vehicle shall be conducted in the presence of its owner or manager and an observer. In case the vehicle owner or manager is absent, has absconded or cannot be present for another reason while the search cannot be delayed, the search shall still be conducted in the presence of two observers.

The search of vehicles may be participated by persons with expertise about such vehicles.

5. In the course of search of residences, workplaces, places or vehicles, persons who are present may neither deliberately leave searched places nor contact nor exchange opinions with one another or with other persons until the search is completed. 

Article 196. Forfeiture of electronic devices and data

1. The forfeiture of electronic devices and data shall be conducted by persons competent to conduct the proceedings and may be participated by persons with relevant expertise. In case the forfeiture is impossible, electronic data shall be copied and stored in media and forfeited like exhibits.

2. When electronic devices are forfeited, accompanying peripheral devices and related documents may also be forfeited.

Article 197. Forfeiture of correspondence, telegraphs, postal parcels and items at post and telecommunications offices or organizations

1. When necessary to forfeit correspondence, telegraphs, postal parcels and items at a post and telecommunications office or organization, an investigation body shall issue a forfeiture warrant. Such a warrant shall be approved by the same-level procuracy in order to be executed.

2. In case the forfeiture of correspondence, telegraphs, postal parcels and items at a post and telecommunications office or organization cannot be delayed, an investigation body may conduct the forfeiture but shall clearly state the reason for forfeiture in the written record of the forfeiture. After conducting the forfeiture, the investigation body shall send a written request for approval of forfeiture to the same-level procuracy accompanied by documents relating to the forfeiture for consideration and approval.

Within 24 hours after receiving a written request for approval and documents relating to the forfeiture of correspondence, telegraphs, postal parcels and items, the procuracy shall issue a decision to approve or disapprove the forfeiture. If the procuracy decides not to approve the forfeiture, the person who has issued the forfeiture warrant shall immediately return the forfeited correspondence, telegraphs, postal parcels and items to the post and telecommunications office or organization, and concurrently notify such to persons whose correspondence, telegraphs, postal parcels and items have been forfeited.

3. Before conducting the forfeiture, the executor of a forfeiture warrant shall notify such to the concerned post and telecommunications office or organization. The manager of the concerned post and telecommunications office or organization shall create conditions for the executor of the forfeiture warrant to fulfill his/her task.

The forfeiture of correspondence, telegraphs, postal parcels and items shall be witnessed by a representative of the post and telecommunications office or organization, who shall sign for certification the written record of the forfeiture.

Forfeiture warrant-issuing bodies shall notify forfeiture warrants to persons whose correspondence, telegraphs, postal parcels and items are subject to forfeiture. If the notification impedes the investigation, immediately after such impediment no longer exists, forfeiture warrant-issuing bodies shall make such notification.

Article 198. Seizure of objects and documents during a search

1. While conducting a search, an investigator may seize objects that are exhibits and documents directly relating to the case. Objects banned from stockpiling or circulation shall be forfeited and immediately delivered to a competent management body. In case of necessity to seal objects, the sealing shall be conducted in the presence of owners or managers of the objects, observers, representatives of owners’ or managers’ families and administrations of communes, wards or township where the search is conducted.

2. The seizure of documents and objects during a search shall be recorded in writing as prescribed in Article 133 of this Code. A seizure record shall be made in four copies, of which one shall be handed to the owner or manager of the document or object, one included in the case file, one sent to the same-level procuracy, and one handed to the agency managing the seized documents or objects.

Article 199. Responsibility to preserve forfeited, seized or sealed vehicles, documents, objects, electronic data, correspondence, telegraphs, postal parcels and items

1. Vehicles, documents, objects, electronic data, correspondence, telegraphs, postal parcels and items that are forfeited, seized or sealed shall be preserved to keep them intact.

2. Those who break seals of, or consume, transfer, fraudulently swap, hide or destroy, such vehicles, documents, objects, electronic data, correspondence, telegraphs, postal parcels and items shall bear penal liability under the Penal Code.

Article 200. Responsibility of issuers and executors of search, forfeiture or seizure warrants

Issuers and executors of illegal search, forfeiture or seizure warrants shall, depending on the nature and severity of their violations, be disciplined or examined for penal liability in accordance with law.

Chapter XIV

SCENE EXAMINATION, AUTOPSY, EXAMINATION OF TRACES ON HUMAN BODIES, INVESTIGATION EXPERIMENTS

Article 201. Scene examination

1. Investigators shall examine scenes where offenses have been committed or detected in order to find out traces of crime, forfeit exhibits, documents, objects and other related electronic data and clarify circumstances significant to the settlement of criminal cases.

2. Before conducting a scene examination, an investigator shall notify the same-level procuracy of the time and place of the to be-conducted examination for the latter to assign a procurator to supervise the scene examination. Such procurator must be present to supervise the scene examination.

A scene examination shall be conducted in the presence of observers; the accused, defense counsels, victims and witnesses may be allowed to attend and persons with professional expertise may be invited to participate in the scene examination.

3. While conducting a scene examination, investigators shall take photos, draw plans describing the scene, take measurements, and make mock-ups; examine on spot and collect traces of crime, documents and objects related to the case; and clearly write examination results in the written record of the scene examination, which shall be made under Article 178 of this Code.

In case forfeited documents and objects cannot be scrutinized immediately, they shall be preserved, kept intact or sealed and taken to investigation places.

Article 202. Autopsy      

1. Autopsy shall be conducted by forensic experts under the control of investigators and in the presence of observers.

Before conducting an autopsy, an investigator shall notify the same-level procuracy of the time and place of autopsy for the latter to assign a procurator to supervise the autopsy. Such procurator must be present to supervise the autopsy.

2. Criminal technique experts may be invited to participate in an autopsy to detect and collect traces to serve the autopsy.

3. During an autopsy, traces on the corpse shall be photographed and described; all related articles shall be photographed, collected and preserved to serve the expert assessment; and autopsy results shall be clearly written in the written record of the autopsy, which shall be made under Article 178 of this Code.

4. In case of necessity to exhume a corpse, a decision of the investigation body is required and the dead person’s family shall be notified of the exhumation before the exhumation is conducted. In case a dead person had no relative or his/her relatives are unidentifiable, the exhumation shall be notified to the representative of the administration of the commune, ward or township where the corpse is buried.

Article 203. Examination of traces on human bodies

1. When necessary, an investigator shall examine traces of offense or other traces significant to the settlement of the criminal case on the body of a person held in case of emergency, an arrestee, a person held in custody, the accused, a victim or a witness. In case of necessity, investigation bodies may solicit expert assessment.

2. The examination of traces on the body of a person shall be performed by a person of the same sex and witnessed by a person also of the same sex. In case of necessity, a medical doctor may be invited to participate in the examination.

It is prohibited to harm the health, honor or dignity of persons subject to examination of traces on their bodies.

When examining traces on a human body, investigators shall make a written record describing traces found on the body. In case of necessity, they shall take photos and solicit expert assessment. A written record of examination of traces of human body shall be made under Article 178 of this Code.

Article 204. Investigative experiments

1. In order to check and verify documents and circumstances significant to the settlement of a criminal case, an investigation body may conduct investigative experiments by reproducing the scene, replaying acts, circumstances or all other details of a number of facts, and conduct necessary experiments. While conducting investigative experiments, they shall take measurements and photos, make video recordings, draw plans and clearly write experiment results in a record.

Investigation experiments that may cause harm to the life, health, honor, dignity or property of a person participating in investigative experiments and other persons are strictly prohibited.

2. Before conducting an investigative experiment, an investigator shall notify the same-level procuracy of the time and place of investigative experiment for the latter to assign a procurator to supervise the investigation experiment. Such procurator must be present to supervise the investigation experiment. If he/she is absent, the reason for his/her absence shall be clearly written in a record.

3. Investigators shall take charge of investigative experiments which shall be conducted in the presence of observers.

When conducting investigative experiments, investigation bodies may invite persons with relevant expertise to participate in these experiments. In case of necessity, persons held in custody, the accused, defense counsels, victims and witnesses may participate in investigative experiments.

4. In case of necessity, procuracies shall conduct investigative experiments under this Article.

Chapter XV

EXPERT ASSESSMENT AND PROPERTY VALUATION

Article 205. Solicitation of expert assessment

1. In one of the cases specified in Article 206 of this Code or when deeming it necessary, a body competent to conduct the proceedings shall issue a decision to solicit expert assessment.

2. A decision to solicit expert assessment must have the following contents:

a/ Name of the body soliciting the expert assessment; full name of the person competent to solicit expert assessment;

b/ Name of the organization or full name of the person solicited to perform the expert assessment;

c/ Name and characteristics of the object subject to expert assessment;

d/ Titles of relevant documents or comparison samples attached to the decision (if any);

dd/ Contents requested to be assessed;

e/ Date of solicitation of expert assessment and deadline for notification of expert assessment result.

3. Within 24 hours after issuing a decision to solicit expert assessment, the soliciting body shall hand or send such decision, file and object subject to expert assessment to the expert assessment organization or individual and concurrently send such decision to the procuracy competent to exercise the right to prosecution and supervise the investigation.

Article 206. Cases in which expert assessment is compulsory 

Expert assessment is compulsory when it is necessary to determine:

1. The psychiatric state of a criminally charged person when there is any suspicion about his/her penal liability capacity; the psychiatric state of a witness or a victim when there is any suspicion about his/her cognitive capacity or capacity to make truthful statements about facts of the case;

2. The age of the accused, a defendant or a victim if such is significant to the settlement of the case and there is no document to correctly determine his/her age or there is any suspicion about the authenticity of such documents;

3. The cause of human death;

4. Nature of injury and degree of harm to the health or working capability;

5. Narcotics, military weapons, explosives, flammables, poisons, radioactive substances, counterfeit currencies, gold, silver, precious metals, gemstones or antiques;

6. Level of environmental pollution.

Article 207. Request for expert assessment

1. Involved parties or their representatives may request bodies competent to conduct the proceedings to solicit expert assessment of matters related to their lawful rights and interests, except expert assessment to determine the penal liability of criminally charged persons.

Within 7 days after receiving a written request, a body competent to conduct the proceedings shall consider and issue a decision to solicit expert assessment. Rejection of such a request shall be notified in writing to the requester, clearly stating the reason. Upon the expiration of that time limit or from the date of receipt of a notice of rejection of the request for expert assessment solicitation by the body competent to conduct the proceedings, the expert assessment requester may himself/herself request expert assessment.

2. Persons who request expert assessment have the rights and obligations prescribed by the Law on Judicial Assessment.

Article 208. Expert assessment time limit

1. Expert assessment time limit in case expert assessment is compulsory:

a/ Three months for the case specified in Clause 1, Article 206 of this Code;

b/ One month for the cases specified in Clauses 3 and 6, Article 206 of this Code;

c/ Nine days for the cases specified in Clauses 2, 4 and 5, Article 206 of this Code.

2. The expert assessment time limit for other cases must comply with decisions on solicitation of expert assessment.

3. In case an expert assessment cannot be completed within the time limit prescribed in Clauses 1 and 2 of this Article, expert assessment organizations or individuals shall promptly notify such in writing to bodies soliciting or persons requesting expert assessment, clearly stating reasons.

4. The expert assessment time limit prescribed in this Article shall be also applied to the case of additional expert assessment or expert re-assessment.

Article 209. Performance of expert assessment

1. Expert assessment may be performed at the expert assessment body or a place of investigation of the criminal case immediately after a decision to solicit or request expert assessment is issued.

Investigators, procurators, judges and persons requesting expert assessment may participate in the expert assessment but shall notify such in advance to experts.

2. Expert assessment may be performed individually or collectively.

Article 210. Additional expert assessment

1. An additional expert assessment shall be performed in the following cases:

a/ Contents of an expert assessment conclusion remain unclear or incomplete;

b/ New matters arise in relation to circumstances of the case on which expert assessment conclusions have been previously made and need expert assessment.

2. Additional expert assessment may be performed by organizations or individuals that have performed the previous expert assessment or by others.

3. The solicitation of or request for additional expert assessment shall be made as for first-time expert assessment.

Article 211. Expert re-assessment

1. Expert re-assessment shall be performed when there is suspicion about the accuracy of the first expert assessment. The expert re-assessment shall be performed by other experts.

2. A body soliciting expert assessment may decide at its own discretion or at the request of a proceeding participant to solicit expert re-assessment. In case a person soliciting expert assessment does not accept the request for expert re-assessment, he/she shall notify such in writing to the expert assessment requester, clearly stating the reason.

3. In case there is a difference between the initial expert assessment conclusion and expert re-assessment conclusion on the same examined matter, a second expert re-assessment shall be decided by the person soliciting expert assessment. The second expert re-assessment shall be performed by an expert assessment council in accordance with the Law on Judicial Assessment.

Article 212. Expert re-assessment in special cases

In a special case, the Procurator General of the Supreme People’s Procuracy or Chief Justice of the Supreme People’s Court shall decide on expert re-assessment after conclusions are made by an expert assessment council. The expert re-assessment in a special case shall be performed by a new council, and persons who have participated in the previous expert assessment may not perform re-assessment. Expert re-assessment conclusions in this case may be used to settle the criminal case.

Article 213. Expert assessment conclusions

1. An expert assessment conclusion must clearly state results of expert assessment of contents for which expert assessment has been solicited or requested and of other contents in accordance with the Law on Judicial Assessment.

2. Within 24 hours after making an expert assessment conclusion, an organization or individual that has performed the expert assessment shall send such conclusion to the body soliciting or person requesting expert assessment.

Within 24 hours after receiving an expert assessment conclusion, the body soliciting or person requesting expert assessment shall send such conclusion to the procuracy exercising the right to prosecution and supervising the investigation.

3. To clarify contents of an expert assessment conclusion, the body soliciting or person requesting expert assessment may request the organization or individual that has performed the expert assessment to explain the expert assessment conclusion; and ask the experts additional questions about necessary circumstances.

Article 214. Right of the accused, defendants, victims and other proceeding participants to expert assessment conclusions

1. Within 7 days after receiving a request for solicitation of expert assessment of the accused, a defendant, victim or another proceeding participant, a body competent to conduct the proceedings shall consider and issue a decision to solicit expert assessment.

2. Within 7 days after receiving an expert assessment conclusion, a body competent to conduct the proceedings shall notify such conclusion to the accused, defendants, victims and other related proceeding participants.

3. The accused, defendants, victims and other proceeding participants may present their opinions on an expert assessment conclusion; and request additional expert assessment or expert re-assessment. In case they personally present their opinions, investigation bodies, procuracies or courts shall record in writing such opinions.

4. In case investigation bodies, procuracies or courts reject requests of the accused, defendants, victims and other proceeding participants, they shall notify the rejection in writing to requesters, clearly stating reasons.

Article 215. Request for property valuation

1. In case property valuation is required for the settlement of a criminal case, a body competent to conduct the proceedings shall make a written request for property valuation.

2. A written request for property valuation must have the following details:

a/ Name of the body requesting the property valuation; full name of the competent person requesting the property valuation;

b/ Name of the property valuation council requested;

c/ Information about and characteristics of the property which needs to be valued;

d/ Titles of relevant documents (if any);

dd/ Contents of the request for property valuation;

e/ Date of the request for property valuation and deadline for notification of property valuation conclusion.

3. Within 24 hours after making a written request for property valuation, a body requesting the valuation shall deliver or send such request, file and object subject to valuation to the requested property valuation council; and send such request to the procuracy competent to exercise the right to prosecution and supervise the investigation.

4. Requests for property valuation for settling civil matters in criminal cases shall be made in accordance with the law on civil procedure.

Article 216. Property valuation time limit

The property valuation and notification of property valuation conclusions shall be performed within the time limit stated in written requests for property valuation. In case the property valuation cannot be completed within the requested time limit, the property valuation council shall promptly notify such in writing to bodies or persons that have requested the valuation, clearly stating reasons.

Article 217. Performance of property valuation

1. Property valuation shall be performed by a property valuation council. A property valuation meeting may be held at the place where the to be-valued property is located or at another place as decided by the property valuation council.

Investigators, procurators and judges may participate in property valuation meetings but shall notify in advance the property valuation council of their intention; and present their opinions when allowed by the property valuation council.

2. The Government shall prescribe in detail the establishment and operation of property valuation councils; and the order and procedures for property valuation.

Article 218. Property revaluation

1. In case there is suspicion about the initial property valuation conclusion, a body competent to conduct the proceedings may issue at its discretion or at the request of the criminally charged person or another proceeding participant a written request for property revaluation. A property revaluation shall be conducted by the immediate higher-level property valuation council.

2. In case the initial property valuation conclusion and property revaluation conclusion are inconsistent on the price of the same property, a body competent to conduct the proceedings shall make a written request for the second property revaluation. The second property revaluation shall be performed by a competent property valuation council. In this case of revaluation, revaluation conclusions may be used to settle the criminal case.

Article 219. Property valuation in case property is lost or no longer exists

In case a property which needs to be valued is lost or no longer exists, it shall be valued in accordance with its file consisting of collected information and documents on the property.

Article 220. Property revaluation in special cases

In a special case, the Procurator General of the Supreme People’s Procuracy or Chief Justice of the Supreme People’s Court shall decide on property revaluation after conclusions of the second property revaluation are made by the property valuation council. Property revaluation in special cases shall be performed by a new council. Persons who have participated in the previous valuation may not participate in the revaluation. Conclusions of a property revaluation in a special case may be used to settle the criminal case.

Article 221. Property valuation conclusions

1. A property valuation conclusion must clearly state the concluded price of the property according to contents of the property valuation request and other contents prescribed by law.

2. Within 24 hours after making a property valuation conclusion, the property valuation council shall send it to the body or person requesting the property valuation.

Within 24 hours after receiving a property valuation conclusion, the body or person requesting the valuation shall send it to the procuracy exercising the right to prosecution and supervising the investigation.

3. To clarify contents of a property valuation conclusion, a body requesting the property valuation may request the property valuation council to explain the valuation conclusion; and to ask additional questions to the council about other necessary circumstances.

Article 222. Right of the accused, defendants, victims and other proceeding participants to property valuation conclusions

1. Within 7 days after receiving a request for property valuation of the accused, a defendant, victim or another proceeding participant, a body competent to conduct the proceedings shall consider the request and issue a decision to request property valuation.

2. Within 7 days after receiving a property valuation conclusion, a body competent to conduct the proceedings shall notify such conclusion to the accused, defendants, victims and other related proceeding participants.

3. The accused, defendants, victims and other proceeding participants may present their opinions on a property valuation conclusion; and request revaluation. In case they personally present their opinions, investigation bodies, procuracies or courts shall record in writing such opinions.

4. In case investigation bodies, procuracies or courts reject requests of the accused, defendants, victims and other proceeding participants, they shall notify the rejection in writing to requesters, clearly stating reasons.

Chapter XVI

SPECIAL PROCEDURAL INVESTIGATION MEASURES

Article 223. Special procedural investigation measures

After the initiation of a criminal case, during the investigation, a person competent to conduct the proceedings may apply the following special procedural investigation measures:

1. Secret audio recording and video recording;

2. Telephone tapping;

3. Secret collection of electronic data.

Article 224. Cases of application of special procedural investigation measures

Special procedural investigation measures may be applied in the following cases:

1. Offenses infringing upon the national security, drug-related offenses, corruption, terrorism or money laundering;

2. Other organized offenses categorized as particularly serious offenses.

Article 225. Competence and responsibility to issue and execute decisions on application of special procedural investigation measures

1. Heads of provincial-level investigation bodies, heads of military investigation bodies at the military zone level or higher level may issue at their own discretion or at the request of chief procurators of provincial-level people’s procuracies or chief procurators of military zone-level military procuracies decisions on application of special procedural investigation measures. For cases accepted for investigation by district-level investigation bodies or regional military investigation bodies, heads of such bodies shall request heads of provincial-level investigation bodies or heads of military zone-level military investigation bodies to consider and decide on application of special procedural investigation measures.

2. A decision on application of a special procedural investigation measure must clearly specify necessary information about the person or entity subject to the special procedural investigation measure; name of the measure to be applied; time limit and place of application, body applying the special procedural investigation measure, and other contents specified in Clause 2, Article 132 of this Code.

3. A decision on application of a special procedural investigation measure shall be approved by the chief procurator of the same-level procuracy in order to be executed. The head of the investigation body that has issued such decision shall strictly examine the application of such measure and promptly propose the procuracy to cancel such measure if deeming it no longer necessary.

Specialized bodies of the People’s Public Security and People’s Army as defined by law shall execute decisions on application of special procedural investigation measures.

4. Heads of investigation bodies, chief procurators of competent procuracies and executors of decisions on application of special procedural investigation measures shall keep secret such application.

Article 226. Time limit for application of special procedural investigation measures

1. The time limit for application of a special procedural investigation measure is 2 months from the date it is approved by a chief procurator. In complicated cases, such time limit may be extended but must not exceed the investigation time limit prescribed in this Code.

2. At least 10 days before the time limit for application of a special procedural investigation measure expires, if deeming it necessary to extend such time limit, the head of an investigation body that has issued the decision on application of such measure shall request in writing the chief procurator that has approved the decision to consider and decide on extension of the time limit.

Article 227. Use of information and documents collected through special procedural investigation measures

1. Information and documents collected through special procedural investigation measures may only be used for the initiation, investigation, prosecution and trial of criminal cases; information and documents not relating to criminal cases shall be promptly destroyed.

It is prohibited to use information, documents and evidence collected for other purposes.

2. Information and documents collected through the application of special procedural investigation measures may be used as evidence in the settlement of criminal cases.

3. Investigation bodies shall immediately notify results of application of special procedural investigation measures to chief procurators that have approved the application of such measures.

Article 228. Cancellation of application of special procedural investigation measures

A chief procurator that has approved a decision on application of a special procedural investigation measure shall promptly cancel such decision in one of the following cases:

1. A written request is made by the head of a competent investigation body;

2. A violation is committed in the course of application of the special procedural investigation measure;

3. The application of the special procedural investigation measure is no longer necessary.

Chapter XVII

SUSPENSION AND TERMINATION OF
INVESTIGATION

Article 229. Suspension of investigation

1. An investigation body shall issue a decision on suspension of investigation in one of the following cases:

a/ The accused is not yet identified or his/her whereabouts are unknown but the time limit for investigation of the criminal case has expired. In case the whereabouts of the accused are unclear, the investigation body shall issue a decision on pursuit of the accused before suspending the investigation;

b/ A judicial assessment determines that the accused suffers from a mental disease or very dangerous disease. In this case, investigation may be suspended before the investigation time limit expires;

c/ Expert assessment has been solicited or property valuation or foreign judicial assistance has been requested but no results are obtained upon the expiration of the investigation time limit. In this case, the expert assessment, property valuation or judicial assistance will be further performed until results are obtained.

2. If a case involves many accused while the reason for the suspension of investigation does not relate to all of these accused, the investigation may be suspended with respect to each of them.

3. Within 2 days after issuing a decision to suspend the investigation, an investigation body shall send it to the same-level procuracy, the accused, defense counsel or representative of the accused; and notify it to victims, involved parties and their defense counsels.

Article 230. Cessation of investigation

1. An investigation body shall issue a decision on cessation of investigation in one of the following cases:

a/ There is one of the grounds specified in Clause 2, Article 155, and Article 157 of this Code or there are grounds specified in Article 16, or Article 29, or Clause 2, Article 91, of the Penal Code;

b/ The investigation time limit has expired but it is still impossible to prove that the accused has committed an offense.

2. A decision on cessation of investigation must clearly state the time and place of issuance; reasons and grounds for cessation, cancellation of deterrent measures or coercive measures, return of seized documents and objects (if any), handling of exhibits, and other related matters.

For a case involving more than one accused while the grounds for cessation of investigation do not relate to all of them, the investigation may be ceased with respect to each of them.

3. Within 15 days after receiving a decision on cessation of investigation together with the case file from an investigation body, if finding such decision well grounded, the procuracy shall return the case file to the investigation body for settlement according to its competence; if finding such decision ungrounded, the procuracy shall cancel it and request the investigation body to resume the investigation; if deeming that there are adequate grounds for prosecution, the procuracy shall cancel such decision and issue a decision on prosecution within the time limit and according to the order and procedures prescribed in this Code.

Article 231. Pursuit of the accused

1. When the accused absconds or his/her whereabouts are unknown, an investigation body shall issue a pursuit warrant against him/her.

2. A pursuit warrant must clearly state the full name, date of birth and residence of the accused, characteristics for identification of the accused, offense for which criminal proceedings have been initiated against the accused, and the details specified in Clause 2, Article 132 of this Code; and be enclosed with the accused’s photo (if any).

Pursuit warrants shall be sent to same-level procuracies and publicly notified for detection and arrest of wanted persons.

3. Once the accused is arrested under a pursuit warrant, the investigation body that has issued such warrant shall issue a decision to terminate the pursuit. Such decision shall be sent to the same-level procuracy and publicly notified.

Article 232. Completion of investigation

1. Upon completion of investigation, an investigation body shall make a written investigation conclusion.

2. An investigation shall be completed when an investigation body issues a written investigation conclusion proposing prosecution or a written investigation conclusion enclosed with a decision to cease the investigation.

3. A written investigation conclusion must clearly state the date, full name and position of its maker and bear his/her signature.

4. Within 2 days after issuing a written investigation conclusion proposing prosecution or written investigation conclusion enclosed with a decision to cease the investigation, an investigation body shall send it together with the case file to the same-level procuracy; hand it to the accused or his/her representative; send it to the defense counsel; and notify it to victims, involved parties and defenders of their lawful rights and interests.

Article 233. Investigation conclusions in case of proposing prosecution

In case of proposing prosecution, a written investigation conclusion must clearly describe the development of the criminal act; evidence proving the criminal act of the accused, his/her motive and purpose of committing the offense, nature and degree of damage caused by the criminal act; the application, change or cancellation of the deterrent measure or coercive measure; circumstances aggravating or extenuating the penal liability and personal identification characteristics of the accused; the forfeiture or seizure of documents and objects and the handling of exhibits; reasons and conditions for committing the criminal act and other circumstances significant to the criminal case; reasons and grounds for the proposal for prosecution; crimes, articles, clauses, points in the Penal Code applied; and proposals for the settlement of the case.

A written investigation conclusion must clearly state the date of making the conclusion; full name, position and signature of its maker.

Article 234. Investigation conclusions in case of cessation of investigation

In case of cessation of investigation, a written investigation conclusion must clearly describe the development of the matter, process of investigation, reasons and grounds for ceasing the investigation.

A written investigation conclusion must clearly state the date of making the conclusion; full name, position and signature of its maker.

A decision on cessation of investigation must clearly state the time and place of issuance, reasons and grounds for cessation of investigation, cancellation of the deterrent measure or coercive measure, return of seized documents and objects (if any), handling of exhibits, and other relevant matters.

Article 235. Resumption of investigation

1. In case there is a reason to cancel a decision on cessation or suspension of investigation, an investigation body shall issue a decision to resume the investigation provided the statute of limitations for penal liability examination has not yet expired.

If the investigation is ceased under Clauses 5 and 6, Article 157 of this Code but the accused disagrees with the cessation and requests reinvestigation, an investigation body or same-level procuracy shall issue a decision to resume the investigation.

2. Within 2 days after issuing a decision to resume the investigation, an investigation body shall send it to the same-level procuracy, the accused, defense counsel or representative of the accused; and notify it to the victim, involved parties and defenders of their lawful rights and interests.

Part Three

PROSECUTION

Chapter XVIII

GENERAL PROVISIONS

Article 236. Tasks and powers of procuracies when exercising the right to prosecution at the stage of prosecution

1. To decide on application, change or cancellation of deterrent measures or coercive measures; to request investigation bodies to pursue the accused.

2. To request bodies, organizations and individuals to provide documents relating to criminal cases in case of necessity.

3. To directly carry out a number of investigation activities to examine and add documents and evidence in order to decide on prosecution or when courts request additional investigation while they deem it unnecessary to return case files to investigation bodies.

4. To decide on initiation of criminal cases, change or supplementation of decisions on initiation of criminal cases or initiation of criminal proceedings against the accused in case other offenses or offenders are detected in the criminal case against which or whom criminal cases have not yet been initiated or remain uninvestigated.

5. To decide to return case files to investigation bodies for additional investigation.

6. To decide on separation or joinder of cases; to transfer cases for prosecution according to jurisdiction, apply summary procedure or apply the measure of compulsory medical treatment.

7. To decide to extend and not to extend the time limit for prosecution and time limit for application of deterrent measures or coercive measures.

8. To decide on prosecution.

9. To decide to cease or suspend criminal cases; to decide to cease or suspend criminal cases against the accused; to decide to resume criminal cases or resume criminal cases against the accused.

10. To perform other tasks and exercise other powers in order to decide on prosecution in accordance with this Code.

Article 237. Tasks and powers of procuracies when performing supervision at the stage of prosecution

1. When performing supervision at the stage of prosecution, procuracies have the following tasks and powers:

a/ To supervise criminal proceedings of proceeding participants; to request or propose competent bodies, organizations and individuals to strictly handle proceeding participants who commit law violations;

b/ To propose concerned bodies and organizations to apply measures to prevent offenses and violations;

c/ To perform other tasks and exercise other powers to perform supervision at the stage of prosecution in accordance with this Code.

2. Within 10 days after receiving a request or proposal mentioned at Point a or b, Clause 1 of this Article, a competent body, organization or individual shall notify the execution of such request or proposal to the procuracy.

Article 238. Delivery and receipt of case files and written investigation conclusions

1. When an investigation body or a body assigned to carry out a number of investigation activities delivers a case file enclosed with a written investigation conclusion proposing prosecution and exhibits (if any), the procuracy shall examine and handle them as follows:

a/ In case documents in the case file and accompanying exhibits (if any) are sufficient compared to the list of documents and exhibits and the written investigation conclusion has been handed to the accused or his/her representative, the procuracy shall accept the case file;

b/ In case documents in the case file and accompanying exhibits (if any) are insufficient compared to the list of documents and exhibits or the written investigation conclusion  has not yet been handed to the accused or his/her representative, the procuracy shall not accept the case file and request the investigation body or body assigned to carry out a number of investigation activities to add documents and exhibits; and request the handing of the written investigation conclusion to the accused or his/her representative.

2. The delivery and receipt of case files and written investigation conclusions shall be recorded in writing as prescribed in Article 133 of this Code which shall be included in such case files.

Article 239. Competence to prosecute

1. A procuracy that has exercised the right to prosecution and supervised the investigation may decide on prosecution. A procuracy’s competence to prosecute shall be determined in accordance with the jurisdiction of the court for a criminal case.

For a criminal case not falling under its competence to prosecute, a procuracy shall immediately issue a decision to transfer the case to a procuracy having such competence. The transfer of a case to a procuracy outside a province, centrally run city or military zone shall be decided by the provincial-level procuracy or military zone-level military procuracy.

For a criminal case in which a higher-level procuracy exercises the right to prosecution and supervises the investigation, such procuracy shall decide on prosecution. At least 2 months before the termination of investigation, the higher-level procuracy shall notify the prosecution to a lower-level procuracy at the same level with the court with the jurisdiction to conduct first-instance trial of the case for the latter to assign a procurator to study the case file. Immediately after deciding on prosecution, the higher-level procuracy shall issue a decision to assign the lower-level procuracy to exercise the right to prosecution and supervise the trial; after receiving the case file enclosed with the indictment, the lower-level procuracy has competence to exercise the right to prosecution and supervise the trial in accordance with this Code.

2. Within 3 days after issuing a decision to transfer a case, a procuracy shall notify in writing the transfer to the body that has terminated the investigation of the case, the accused or his/her representative, defense counsel, victim and other proceeding participants.

The delivery or sending of case files enclosed with indictments shall be effected under Clause 2, Article 240 of this Code. In this case, the time limit for prosecution shall be counted from the date of receipt of the case file by the procuracy competent to prosecute.

Article 240. Time limit for decision on prosecution

1. Within 20 days for less serious offenses and serious offenses or 30 days for very serious offenses and particularly serious offenses after receiving a case file and a written investigation conclusion, a procuracy shall issue one of the following decisions:

a/ Decision to prosecute the accused before court;

b/ Decision to return the case file for additional investigation;

c/ Decision to cease or suspend the case, cease or suspend the case against the accused.

In case of necessity, the chief procurator may extend the time limit for deciding on prosecution for no more than 10 days for less serious offenses and serious offenses, no more than 15 days for very serious offenses, and no more than 30 days for particularly serious offenses.

2. Within 3 days after issuing one of the decisions specified in Clause 1 of this Article, a procuracy shall notify the accused, defense counsel or representative of the accused or victim of the return of the case file for additional investigation; hand to the accused or his/her representative and send to the investigation body and defense counsel the indictment and decision to cease or suspend the case, decision to cease or suspend the case against the accused; and notify such documents to victim, involved parties and defenders of their lawful rights and interests.

The handing and receipt of the above documents shall be recorded in writing as prescribed in Article 133 of this Code, and such written records shall be included in case files.

For complicated cases, the time limit for handing the indictment and decision to cease or suspend the case to the accused or his/her representatives may be extended for no more than 10 days.

3. The decisions specified in Clause 1 of this Article shall be immediately sent to higher-level procuracies. Chief procurators of higher-level procuracies may withdraw, cease or cancel such decisions if finding them ungrounded or unlawful, and request lower-level procuracies to issue lawful decisions.

Article 241. Application, change or cancellation of deterrent measures or coercive measures

After receiving a case file and written investigation conclusion, a procuracy may decide to apply, change or cancel a deterrent measure or coercive measure in accordance with this Code.

The time limit for applying a deterrent measure at the stage of prosecution must not exceed the time limit prescribed in Clause 1, Article 240 of this Code.

Article 242. Joinder or separation of criminal cases at the stage of prosecution

1. A procuracy shall decide to join several criminal cases in one of the following cases:

a/ The accused has committed several offenses;

b/ The accused has committed an offense repeatedly;

c/ Several accused have jointly committed an offense or there are other persons who, together with the accused, harbor or fail to report the offense or consume assets gained by the accused from the commission of the offense.  

2. A procuracy shall decide to separate a criminal case in one of the following cases, provided that such separation does not affect the determination of comprehensive and objective facts and there is a decision to suspend the case against the accused:

a/ The accused absconds;

b/ The accused suffers a very dangerous disease;

c/ The accused is subject to the measure of compulsory medical treatment.

Chapter XIX

DECISION OF PROSECUTION OF THE ACCUSED

Article 243. Decisions to prosecute the accused

Procuracies shall decide to prosecute the accused before court by indictments.

An indictment must clearly state the development of the criminal act; evidence for determining the criminal act of the accused; tricks, motive and purpose of the commission of the criminal act; the nature and degree of damage caused by the criminal act; the application, change or cancellation of deterrent measures or coercive measures; circumstances aggravating or extenuating the penal liability, personal identification characteristics of the accused; the forfeiture or seizure of documents and objects and handling of exhibits; causes and conditions for committing the criminal act and other circumstances significant to the case.

The conclusion of an indictment must clearly state the offense committed and applicable articles, clauses and points of the Penal Code.

An indictment must clearly state the date of its issuance; the full name and position of its issuer and bear his/her signature.

Article 244. Transfer of case files and indictments to courts

Within 3 days after making an indictment, a procuracy shall transfer the case file and indictment to the court. For complicated cases, the time limit for transferring a case file and an indictment to the court may be extended but must not exceed 10 days.

For a criminal case where the accused is temporarily detained, 7 days before the temporary detention time limit expires, the procuracy shall notify such to the court so the latter can consider and decide on temporary detention of the accused upon receiving the case file.

Article 245. Return of case files for additional investigation

1. A procuracy shall issue a decision to return a case file and request an investigation body to conduct additional investigation in one of the following cases:

a/ Evidence to prove one of the matters prescribed in Article 85 of this Code is inadequate and the procuracy cannot additionally collect evidence by itself;

b/ There are grounds for initiating criminal proceedings against the accused for another offense or many other offenses;

c/ There are accomplices and other offenders involved in the case against whom criminal proceedings have not yet been initiated;

d/ There is a serious violation of the criminal procedure.

2. A decision to return a case file for additional investigation must clearly state the matter requiring additional investigation as specified in Clause 1 of this Article and the contents specified in Clause 2, Article 132 of this Code.

3. The investigation body shall fulfill all requests stated in the procuracy’s decision to return the case file for additional investigation; in case it cannot do so due to a force majeure event or an external obstacle, it shall clearly state the reason in writing.

Upon completing the additional investigation, the investigation body shall make a written conclusion of the additional investigation. The written conclusion must clearly state results of the additional investigation and the investigation body’s view on the settlement of the case. If results of the additional investigation substantially change the conclusion of the previous investigation, the investigation body shall make a new written investigation conclusion to replace the previous one.

The transfer of case files together with written conclusions of additional investigations to the procuracy; and the delivery, receipt and sending notices of results of additional investigations must comply with Articles 232 and 238 of this Code.

Article 246. Processing of requests of the court for additional investigation

In case the court decides to return a case file to request additional investigation, the procuracy shall consider grounds for the request for additional investigation and handle such request as follows:

1. If the decision to return the case file for additional investigation is grounded but it is deemed unnecessary to return the case file to the investigation body, the procuracy shall directly carry out a number of investigation activities to add documents and evidence. In case it cannot conduct additional investigation by itself, the procuracy shall issue a decision to return the case file for additional investigation and immediately transfer the case file to the investigation body for investigation.

In case results of the additional investigation substantially change the content of the previous indictment, the procuracy shall issue a new indictment to replace the previous one and transfer the case file to the court. In case results of the additional investigation lead to the cessation of the case, the procuracy shall issue a decision to cease the case and notify such to the court.

2. If the decision to return the case file to request additional investigation is ungrounded, the procuracy shall issue a document to clearly state the reason, uphold the prosecution decision and return the case file to the court.

Article 247. Suspension of criminal cases

1. The procuracy shall decide to suspend a criminal case in the following cases:

a/ There is a judicial assessment conclusion determining that the accused suffers a mental disease or another fatal disease, the case may be suspended before the time limit for deciding on prosecution expires;

b/ The accused absconds and his/her whereabouts are unknown while the time limit for deciding on prosecution has expired; in this case, it shall request the investigation body to pursue the accused before suspending the case. The pursuit of the accused must comply with Article 231 of this Code;

c/ Expert assessment has been solicited, property valuation, or judicial assistance of a foreign country has been requested but not result is obtained upon the expiration of the time limit for deciding on prosecution. In this case, the expert assessment, property valuation or judicial assistance may still be performed until results are obtained.

2. A decision to suspend a criminal case must clearly state the reason and grounds for suspension, other related matters and the contents specified in Clause 2, Article 132 of this Code.

In case a criminal case involves many accused while grounds to suspend the case are not related to all of the accused, the case shall be suspended with respect to each of the accused.

Article 248. Cessation of criminal cases

1. The procuracy shall decide not to prosecute and issue a decision to cease a criminal case when there is one of the grounds specified in Clause 2, Article 155 and Article 157 of this Code or there is a ground specified in Article 16, or Article 29, or Clause 2, Article 91, of the Penal Code.

2. A decision to cease a criminal case must clearly state the reason and grounds for cessation, the cancellation of deterrent measures and coercive measures, handling of exhibits and seized objects or documents (if any), other related matters and the contents specified in Clause 2, Article 132 of this Code.

In case a criminal case involves many accused while grounds to cease the case are not related to all of the accused, the case shall be ceased with respect to each of the accused.

Article 249. Resumption of criminal cases

1. In case there is a reason to cancel a decision to cease or suspend a criminal case, the procuracy shall issue a decision to resume the case provided the statute of limitations for penal liability examination has not expired. If the criminal case is ceased under Clauses 5 and 6, Article 157 of this Code but the accused disagrees with the cessation decision and requests resumption of the case, the procuracy shall issue a decision to resume the case. The resumption can be applied to the whole case or to each of the accused.

2. A decision to resume a criminal case must clearly state the reason and grounds for the resumption, other related matters and the contents specified in Clause 2, Article 132 of this Code.

3. Within 3 days after issuing a decision to resume a criminal case or a decision to resume a criminal case against the accused, the procuracy shall deliver it to the accused or his/her representative; send it to the body that has terminated the investigation of the case and to the defense counsel; and notify it to victims, involved parties and defenders of their lawful rights and interests.

The delivery and receipt of a decision to resume a criminal case or a decision to resume a criminal case against the accused shall be recorded in writing, and such written record shall be included in the case file.

4. The time limit for deciding on prosecution upon resumption of a criminal case shall be counted according to the general procedure prescribed in this Code, starting from the date the procuracy issues the decision to resume the case.

5. Upon resuming a case, the procuracy may apply, change or cancel deterrent measures and coercive measures in accordance with this Code.

In case there is a ground specified in this Code for the application of the measure of temporary detention, the temporary detention time limit for resumption of the criminal case must not exceed the time limit for deciding on prosecution.

Part Four

TRIAL OF CRIMINAL CASES

Chapter XX

GENERAL PROVISIONS

Article 250. Direct, verbal and uninterrupted trial

1. Trial shall be conducted verbally.

The trial panel shall directly identify circumstances of a case by asking questions, listening to opinions of defendants, victims, involved parties or their representatives, witnesses, expert witnesses and other participants in the court hearing who are summoned by the court; check and examine collected documents and exhibits; disclose transcripts and documents and carry out other procedural activities to verify evidence; listen to opinions of procurators, defense counsels, and defenders of lawful rights and interests of victims and involved parties.

2. The trial shall be conducted uninterruptedly, except for breaks and intervals when the hearing is suspended.

Article 251. Suspension of hearings

1. The trial may be suspended in one of the following cases:

a/ The verification, collection or addition of evidence, documents and objects is required but cannot be performed at the hearing can be performed within 5 days from the date of suspension of the hearing;

b/ Persons competent to conduct the proceedings or persons participating in the proceedings are unable to continue to participate in the hearing due to their health conditions, force majeure events or other external obstacles but they can participate the hearing again within 5 days from the date of suspension of the hearing;

c/ The court clerk is absent from the hearing.

2. The suspension of a hearing shall be recorded in the hearing transcript and notified to proceeding participants. The time limit for hearing suspension is 5 days from the date the hearing suspension is decided. Upon the expiration of the time limit for hearing suspension, the trial of the case shall be resumed. In case it is impossible to continue the trial of the case, the hearing shall be postponed.

Article 252. Verification, collection or addition of evidence by the court

The court shall perform the verification, collection or addition of evidence through the following activities:

1. Receiving evidence, documents and objects related to the case provided by bodies, organizations and individuals;

2. Requesting bodies, organizations and individuals to provide documents and objects related to the case;

3. Examining on site exhibits that cannot be brought to the hearing;

4. Examining places where offenses occur or other places related to the case;

5. Soliciting expert assessment and requesting property valuation in cases other than those subject to compulsory solicitation of expert assessment or requiring property valuation specified in Articles 206 and 215 of this Code; soliciting additional expert assessment or expert re-assessment or requesting property revaluation;

6. In case the court has requested the procuracy to add evidence but the latter fails to do so, the former may perform the verification, collection or addition of evidence to settle the case.

Article 253. Receipt of evidence, documents and objects related to criminal cases

1. When bodies, organizations and individuals provide evidence, documents and objects related to a criminal case, the presiding judge of the hearing shall receive them and may ask the providers about matters related to them. The receipt shall be recorded in writing.

2. Immediately after receiving evidence, documents and objects provided by bodies, organizations and individuals, the court shall transfer them to the same-level procuracy. Within 3 days after receiving such evidence, documents and objects, the procuracy shall examine and return them to the court for inclusion in the case file.

Article 254. Composition of trial panel

1. The first-instance trial panel must be composed of one judge and two assessors. For serious and complicated cases, the first-instance trial panel may be composed of two judges and three assessors.

For cases with defendants charged with offenses for which the Penal Code imposes the highest penalty being life imprisonment or death penalty, the first-instance trial panel must be composed of two judges and three assessors.

2. The appellate trial panel must be composed of three judges.

Article 255. Decisions to bring cases for trial

1. A decision to bring a case for first-instance trial must clearly state:

a/ Date of issuance; name of the court issuing the decision; date, time and venue of opening the hearing;

b/ Public or in-camera hearing;

c/ Full names, dates and places of birth, occupations and residences of defendants;

d/ Offenses, and points, clauses and articles of the Penal Code for and under which the procuracy prosecutes defendants;

dd/ Full names of judges, assessors and court clerk; full names of alternate judges, assessors and court clerk (if any);

e/ Full name of the procurator who exercises the right to prosecution and supervises the trial at the hearing; the full name of the alternate procurator (if any);

g/ Full name of the defense counsel (if any);

h/ Full name of the interpreter (if any);

i/ Full names of other persons summoned to the hearing;

k/ Exhibits that need to be presented for examination at the hearing.

2. A decision to bring a case for appellate trial must clearly state details specified at Points a, b, e, g, h, i and k, Clause 1 of this Article; offenses and penalties decided by the first-instance court; the full names of the appellants and persons subject to the appeal or protest; the procuracy that files the protest; the full names of judges and court clerks; full names of alternate judges and court clerks (if any).

Article 256. Internal rules of hearings

1. All persons entering the courtroom shall be dressed properly, submit to the security check and strictly follow instructions of the court clerk.

2. All persons in the courtroom shall show respect for the trial panel, keep the order and obey instructions of the presiding judge.

3. All persons in the courtroom shall rise when members of the trial panel enter the courtroom and when judgments are pronounced. Defendants shall stand when the procurator reads the indictment or prosecution decision. Persons summoned by the court to the hearing who wish to present their opinions shall ask for permission of the presiding judge of the hearing; persons presenting their opinions shall stand while doing so and being questioned.

Persons who are unable to stand due to their health conditions may be permitted by the presiding judge to stay seated.

4. At a hearing, defendants who are currently in temporary detention may contact only their defense counsels. Their contact with other persons must be permitted by the presiding judge of the hearing.

5. Persons aged under 16 are not allowed to enter the courtroom, except in case they are summoned by the court to the hearing.

Article 257. Courtrooms

1. A courtroom must be solemnly and safely arranged, ensuring equality between persons exercising the right to prosecution and lawyers and other defense counsels.

2. The Chief Justice of the Supreme People’s Court shall detail this Article.

Article 258. Hearing transcripts

1. A hearing transcript must clearly state the time, date and venue of the hearing and all developments at the hearing from the commencement to the end. Apart from being recorded in the transcript, developments at the hearing can be audio recorded or audio-video recorded.

2. All questions, answers, statements and decisions made at the hearing shall be recorded in the transcript.

3. Upon completion of the hearing, the presiding judge of the hearing shall examine the transcript and, together with the court clerk, sign it.

4. After the presiding judge and the court clerk sign the hearing transcript, the procurator, defendants, defense counsels, victims, involved parties, defenders of lawful rights and interests of victims, involved parties or their representatives can read the hearing transcript. If any person requests any modifications or supplements to be made in the hearing transcript, the court clerk shall record such modifications or supplements in the hearing transcript. No erasure or direct modification of the text is allowed but otherwise modifications or supplements shall be recorded at the bottom of the hearing transcript, the court clerk and the presiding judge shall sign to certify the changes. If the presiding judge refuses to accept such a request, the reason for refusal shall be clearly stated and recorded in the hearing transcript.

Article 259. Judgment deliberation minutes

1. The judgment deliberation shall be recorded in a minutes.

A judgment deliberation minutes shall be signed by all members of the trial panel in the deliberation room before judgments are pronounced.

2. A judgment deliberation minutes of the first-instance trial panel must clearly state:

a/ Time and date of making the minutes; name of the court hearing the case;

b/ Full names of judges and assessors;

c/ Case which has been brought for trial;

d/ Results of the trial panel’s voting on each matter which has been discussed under Clause 3, Article 326 of this Code and other opinions (if any).

3. A judgment deliberation minutes of the appellate trial panel must clearly state the details specified at Points a, c and d, Clause 2 of this Article and full names of judges.

Article 260. Judgments

1. The court makes judgments in the name of the Socialist Republic of Vietnam.

Judgments shall be signed by all members of the trial panel.

2. A first-instance judgment must clearly state:

a/ Name of the first-instance court; serial number and date of acceptance of the case; serial number and date of pronouncement of the judgment; full names of members of the trial panel, court clerk and procurator; full name, date and place of birth, residence, occupation, educational level, nationality, previous convictions and criminal records of the defendant; the date on which the defendant was held in custody or temporarily detained; full name, age, occupation, place of birth and residence of the representative of the defendant; full names of defense counsels, witnesses, expert witnesses, property valuators, interpreters, translators and other persons summoned by the court to participate in the hearing; full names, age, occupations and residences of the victim, involved parties and their representatives; serial number and date of the decision to bring the case for trial; public or in-camera trial; time and place of the trial;

b/ Serial number and date of the indictment or prosecution decision; name of the prosecuting procuracy; act of the defendant prosecuted as an offense by the procuracy; the offense, point, clause and article of the Penal Code and the penalty, additional penalties, judicial measures and responsibility to pay compensation for damage proposed by the procuracy against the defendant; and the handling of exhibits;

c/ Opinions of defense counsels, victims, involved parties and other persons summoned by the court to participate in the hearing;

d/ Assessments of the trial panel which must analyze inculpatory evidence and exculpatory evidence, determine whether the defendant is guilty or not, and if guilty, which is the offense, under which point, clause and article of the Penal Code and other legal documents, aggravating circumstances and extenuating circumstances and how should the case be settled. If the defendant is not guilty, the judgment must clearly state grounds to determine that the defendant is not guilty and the restoration of his/her honor and lawful rights and interests in accordance with law;

dd/ Analysis of reasons for which the trial panel refuses to accept inculpatory evidence, exculpatory evidence, requests and proposals of the procurator, defendant, defense counsel, victim, involved parties and their representatives and defenders of their lawful rights and interests;

e/ Analysis of the lawfulness of procedural acts and decisions of investigators, procurators and defense counsels in the course of investigation, prosecution and trial;

g/ Decisions of the trial panel on each matter to be settled in the case, and on the court fee and the right to appeal the judgment. In case there is a decision that shall be executed immediately, such decision shall be clearly indicated.

3. An appellate judgment must clearly state:

a/ Name of the appellate court; serial number and date of acceptance of the case; serial number and date of pronouncement of the judgment; full names of members of the trial panel, court clerk and procurator; full name, date and place of birth, residence, occupation, educational level, nationality, previous convictions and criminal records of the defendant who appeals or is subject to the appeal or protest, and defendants who do not appeal or are not subject to the appeal or protest but are considered by the appellate court; the date on which the defendant was held in custody or temporarily detained; full name, age, occupation, place of birth and residence of the representative of the defendant; full names of defense counsels, expert witnesses, interpreters and other persons summoned by the court to participate in the hearing; full names, age, occupations, residences and addresses of victims, involved parties and their representatives; name of the procuracy filing the protest; public or in-camera trial; time and venue of trial;

b/ Summarized contents of the case and decisions in the first-instance judgment; contents of the appeal or protest; reasoning of the appellate trial panel, and grounds for acceptance or rejection of the appeal or protest; points, clauses and articles of the Penal Code and other legal documents on which the appellate trial panel has based itself to settle the case;

c/ Decisions of the appellate trial panel on each matter to be settled in the case due to being appealed or protested against, and on the first-instance and appellate court fees.

Article 261. Modification and supplementation of judgments

1. No modification or supplement can be made in a judgment unless a spelling error or mistakenly or wrongly calculated figure is detected in it.

The modification or supplementation of a judgment may neither change the nature of the case nor be unfavorable to the defendant and other proceeding participants.

The modification or supplementation shall be made in writing and immediately handed to the persons specified in Article 262 of this Code.

2. The modification or supplementation of a judgment mentioned in Clause 1 of this Article shall be decided by the presiding judge of the hearing at which such judgment is made. In case the presiding judge of the hearing is unable to make the modification or supplementation, such work shall be performed by the chief justice of the court that has tried the case.

Article 262. Handing or sending of judgments

1. Within 10 days after a judgment is pronounced, the first-instance court shall hand the judgment to the defendants, victims, same-level procuracy and defense counsels; send the judgment to defendants tried in absentia prescribed at Point c, Clause 2, Article 290 of this Code, immediate higher-level procuracy, same-level investigation body, competent criminal judgment enforcement body, detention camp and prison where the defendants are incarcerated; notify the judgment in writing to the administrations of the communes, wards or townships where the defendants reside or bodies or organizations where they work or study; and provide copies of the judgment or extracts of relevant parts of the judgment to involved parties or their representatives.

In case of trying defendants in absentia under Point a or b, Clause 2, Article 290 of this Code, within the above time limit, the judgment shall be posted up at the offices of the People’s Committees of the communes, wards or townships where the defendants last resided or of the bodies or organizations where they last worked or studied.

The first-instance court shall send the judgment to a competent civil judgment enforcement body in case the first-instance judgment imposes monetary fines and sanctions, orders property confiscation and has civil rulings in accordance with the Law on Enforcement of Civil Judgments.

2. Within 10 days after pronouncing a judgment or making a ruling, the appellate court shall send the appellate judgment or ruling to the same-level procuracy; the competent criminal judgment enforcement body; the investigation body, procuracy and court that has conducted the first-instance trial of the case; the detention camp and prison where the defendants are incarcerated; the appellant, persons with interests or obligations related to the appeal or protest or their representatives; the competent civil judgment enforcement body in case the appellate judgment imposes monetary fines, orders property confiscation and has civil rulings; and notify the judgment or ruling in writing to the administrations of the communes, wards or townships where the defendants reside or the bodies or organizations where they work or study. In case the appellate trial is conducted by a superior people’s court, that time limit may be longer but must not exceed 25 days.

Article 263. Interpreters at hearings

1. In case defendants, victims, involved parties or witnesses do not speak Vietnamese or are deaf or dumb, interpreters shall interpret for them to understand statements, questions and answers made at the hearing, contents of rulings of the trial panel and other matters related to them.

2. Interpreters shall interpret statements, questions, answers of the persons specified in Clause 1 of this Article into Vietnamese for the trial panel and other participants in the court hearing to understand.

Article 264. Recommendations for remedying mistakes and violations in managerial work

1. Apart from making judgments, the court shall make recommendations for concerned bodies and organizations to apply necessary measures to redress causes and conditions for commission of offenses at such bodies and organizations. Within 30 days after receiving a recommendation of the court, an agency or organization shall notify in writing the applied measure to the court.

2. Recommendations of the court may be either read at the hearing together with the judgment or sent to the concerned bodies or organizations only.

Article 265. Recommendations for competent bodies to consider and handle legal documents

In the course of trial of criminal cases, the court shall detect legal documents which are contrary to the Constitution, laws, resolutions of the National Assembly, ordinances and resolutions of the National Assembly Standing Committee and make recommendations to competent bodies for considering amendment, supplementation or annulment of such legal documents in order to ensure the lawful rights and interests of bodies, organizations and individuals.

The consideration of recommendations and making of replies to the court regarding results of the processing of legal documents subject to recommendations must comply with law.

Article 266. Tasks and powers of the procuracy when exercising the right to prosecution at the stage of trial

1. When exercising the right to prosecution at the stage of first-instance trial, the procuracy has the following tasks and powers:

a/ To pronounce indictments, decisions on prosecution according to summary procedure and other decisions on the accusation against defendants at hearings;

b/ To ask questions, examine exhibits and perform on-spot examination;

c/ To make arraignments and arguments, withdraw part or the whole of prosecution decisions; make conclusions on other offenses that are equally serious or less serious than charged offenses; present its view on the settlement of cases at hearings;

d/ To protest against judgments or rulings of the court in case of injustice, wrongful judgment, leaving offenses and offenders unpunished;

dd/ To perform other tasks and exercise other powers in exercising the right to prosecution at the stage of trial in accordance with this Code.

2. When exercising the right to prosecution at the stage of appellate trial, the procuracy has the following tasks and powers:

a/ To present its opinions on contents of appeals or protests;

b/ To add new evidence;

c/ To add or change protests; to withdraw part or the whole of protests;

d/ To ask questions, examine exhibits or perform on-spot examination;

dd/ To present its view on the settlement of cases at hearings or pre-trial meetings;

e/ To argue with defendants, defense counsels and other proceeding participants at hearings;

g/ To perform other tasks and exercise other powers in exercising the right to prosecution at the stage of appellate trial in accordance with this Code.

Article 267. Tasks and powers of the procuracy in supervising trial

1. To supervise the observance of law by the court in adjudicating criminal cases.

2. To supervise the observance of law by proceeding participants; to request or propose competent bodies or organizations to strictly handle proceeding participants who violate the law.

3. To supervise judgments, rulings and other procedural documents of the court.

4. To request the court at the same level or a lower level to transfer criminal case files for considering and deciding to file protests.

5. To protest against the court’s judgments or rulings which seriously violate the procedure law.

6. To propose or request the court, bodies, organizations and individuals to carry out procedural activities in accordance with this Code; to propose the court to remedy violations in procedural activities.

7. To propose concerned bodies and organizations to apply measures to prevent offenses and law violations in their management activities.

8. To exercise the right to make requests or proposals and other tasks and powers in supervising the trial of criminal cases in accordance with this Code.

Chapter XXI

FIRST-INSTANCE TRIAL

Section I

JURISDICTION OF COURTS AT ALL LEVELS

Article 268. Adjudicating jurisdiction of courts

1. District-level people’s courts and regional military courts may conduct first-instance trial of criminal cases involving less serious offenses, serious offenses and very serious offenses, except for the following offenses:

a/ Offenses infringing upon the national security;

b/ Offenses undermining peace, against humanity, and war offenses;

c/ Offenses prescribed in Articles 123, 125, 126, 227, 277, 278, 279, 280, 282, 283, 284, 286, 287, 288, 337, 368, 369, 370, 371, 399 and 400 of the Penal Code;

d/ Offenses committed outside of the territory of the Socialist Republic of Vietnam.

2. Provincial-level people’s courts and military zone-level military courts may conduct first-instance trial of the following cases:

a/ Criminal cases involving offenses not falling under the jurisdiction of district-level people’s courts and regional military courts;

b/ Criminal cases in which defendants, victims and involved parties reside abroad or property related to these cases are located abroad;

c/ Criminal cases falling under the jurisdiction of district-level people’s courts and regional military courts in which there are complicated circumstances which make it difficult to assess and reach agreement on their nature, or cases related to many authorities and sectors; cases in which defendants are judges, procurators, investigators or key leaders of rural districts, urban districts, towns, provincial cities, cities of centrally run cities, high religious dignitaries, or highly prestigious persons in ethnic minority groups.

Article 269. Territorial jurisdiction

1. The court having jurisdiction to adjudicate a criminal case is the court of the place where the offense is committed. For an offense committed in many different places or if the place where an offense has been committed is unidentifiable, the court having the jurisdiction to adjudicate the case is the court of the place where the investigation is completed.

2. For a defendant committing an offense abroad, if he/she is tried in Vietnam, the provincial-level people’s court of the locality where he/she last resided in the country shall try him/her. If the locality where the defendant last resided in the country cannot be identified, the Chief Justice of the Supreme People’s Court shall issue a decision on a case-by-case basis to assign the people’s court of Hanoi city or Ho Chi Minh city or Da Nang city to try him/her.

For a defendant committing an offense abroad, if he/she falls under the adjudicating jurisdiction of a military court, he/she shall be tried by a military zone-level military court under a decision of the Chief Justice of the Central Military Court.

Article 270. Jurisdiction to adjudicate offenses committed on board aircraft or seagoing ships of the Socialist Republic of Vietnam operating outside the airspace or territorial sea of Vietnam

An offense committed on board an aircraft or a seagoing ship of the Socialist Republic of Vietnam which is operating outside the airspace or territorial sea of Vietnam falls under the jurisdiction of the Vietnamese court of the locality where the first airport or seaport of return is located or where such aircraft or seagoing ship has been registered.

Article 271. Trial of a defendant committing many offenses falling under the jurisdiction of courts at different levels

For a defendant committing many offenses, one of which falls under the adjudicating jurisdiction of the higher-level court, such higher-level court shall adjudicate the whole case.

Article 272. Adjudicating jurisdiction of military courts

1. Military courts have the jurisdiction to adjudicate:

a/ Criminal cases in which defendants are active military personnel, national defense civil servants, workers or public employees, reserve military personnel during the period of drills or combat readiness inspection; militias, members of self-defense forces during the period of drills or coordination with the People’s Army in combat and combat service; and citizens mobilized, requisitioned or contracted to serve in the People’s Army;

b/ Criminal cases in which defendants are other than those specified at Point a, Clause 1 of this Article, involving military secrets or causing damage to the life, health, honor or dignity of active military personnel, national defense civil servants, workers or public employees, reserve military personnel during the period of drills or combat readiness inspection, or causing damage to the property, honor or reputation of the People’s Army, or involving offenses committed within military barracks or military zones managed and guarded by the People’s Army.

2. Military courts have the jurisdiction to adjudicate all offenses committed in localities placed under martial law.

Article 273. Trial of a defendant committing many offenses falling under the jurisdiction of people’s courts and military courts

For a case in which there are both defendants or offenses falling under the jurisdiction of a military court and defendants or offenses falling under the jurisdiction of a people’s court, the adjudicating jurisdiction shall be determined as follows:

1. If the case can be separated, the military court shall try defendants and offenses falling under its adjudicating jurisdiction; and the people’s court shall try defendants and offenses falling under its adjudicating jurisdiction;

2. If the case cannot be separated, the military court shall adjudicate the whole case.

Article 274. Transfer of cases at the stage of trial

1. For a case not falling under its jurisdiction, the court shall return the case file to the procuracy that has prosecuted the case for transfer to the procuracy with the prosecuting competence.

Within 3 days after receiving the case file back from the court, the procuracy that has prosecuted the case shall issue a decision to transfer the case file to the procuracy with the prosecuting competence for settlement according to its competence. The transfer of a case outside the territory of a province, centrally run city or military zone must comply with Article 239 of this Code.

When finding the case still under the adjudicating jurisdiction of the court that has returned the case file, the procuracy shall return the case file to the court together with a document clearly stating the reason. If the court still finds the case not under its adjudicating jurisdiction, the settlement of the dispute over adjudicating jurisdiction must comply with Article 275 of this Code. The procuracy shall abide by the decision of the court with jurisdiction.

2. The time limit for prosecuting a case and applying deterrent measures must comply with Articles 240 and 241 of this Code.

Article 275. Settlement of disputes over adjudicating jurisdiction

1. The settlement of disputes over adjudicating jurisdiction among district-level people’s courts of the same province or centrally run city or among regional military courts of the same military zone shall be decided by chief justices of provincial-level people’s courts or chief justices of military zone-level military courts.

2. The settlement of disputes over adjudicating jurisdiction among district-level people’s courts of different provinces or centrally run cities or among regional military courts of different military zones shall be decided by chief justices of provincial-level people’s courts or chief justices of military zone-level military courts of localities where the investigation is completed.

3. The settlement of disputes over adjudicating jurisdiction among provincial-level people’s courts or among military zone-level military courts shall be decided by the Chief Justice of the Supreme People’s Court or Chief Justice of the Central Military Court.

4. The settlement of disputes over adjudicating jurisdiction between people’s courts and military courts shall be decided by the Chief Justice of the Supreme People’s Court.

The transfer of cases for trial according to adjudicating jurisdiction must comply with Article 274 of this Code.

Section II

TRIAL PREPARATION

Article 276. Receipt of case files, indictments and acceptance of cases

1. When the procuracy hands over an indictment, a case file and accompanying exhibits (if any) to the court, the latter shall examine and handle them as follows:

a/ If documents in the case file and accompanying exhibits (if any) are sufficient compared to the list of documents and exhibits and the indictment has been handed to the accused or his/her representative, the court shall receive the case file;

b/ If documents in the case file and accompanying exhibits (if any) are insufficient compared to the list of documents and exhibits or the indictment has not yet been handed to the accused or his/her representative, the court shall not receive the case file and request the procuracy to add documents and exhibits; and request the handing of the indictment to the accused or his/her representative.

2. The handing and receipt of case files and indictments shall be recorded in writing as prescribed in Article 133 of this Code and such written records shall be included in case files.

Immediately after receiving a case file enclosed with an indictment, the court shall accept the case. Within 3 days after accepting the case, the chief justice shall assign a judge to preside the hearing to settle the case.

Article 277. Trial preparation time limit

1. Within 30 days for less serious offenses, 45 days for serious offenses, 2 months for very serious offenses and 3 months for particularly serious offenses, counting from the date of acceptance of a case, the judge assigned to preside over the hearing shall issue one of the following decisions:

a/ To bring the case for trial;

b/ To return the file for additional investigation;

c/ To suspend or cease the case.

For complicated cases, the chief justice of the court may decide to extend the trial preparation time limit for no more than 15 days for less serious offenses and serious offenses, and for no more than 30 days for very serious offenses and particularly serious offenses. The extension of the trial preparation time limit shall be immediately notified to the same-level procuracy.

2. For cases that have been returned for additional investigation, within 15 days after receiving back the case files, the judge assigned to preside over hearings shall issue decisions to bring the cases for trial. In case of resumption of a case, the trial preparation time limit must comply with the general procedures prescribed in this Code from the date the court issues the decision on resumption of the case.

3. Within 15 days after issuing a decision to bring a case for trial, the court shall open a hearing. In case of a force majeure event or an external obstacle, the court may open a hearing within 30 days.

Article 278. Application, change or cancellation of deterrent measures or coercive measures

1. After accepting a case, the judge assigned to preside over the hearing shall decide to apply, change or cancel deterrent measures or coercive measures, except the application, change or cancellation of the temporary detention measure, which shall be decided by the chief justice or deputy chief justice of the court.

2. The time limit for temporary detention for trial preparation must not exceed the trial preparation time limits prescribed in Clause 1, Article 277 of this Code.

3. For defendants currently in temporary detention the time limit of which expires before or on the date of opening the hearing, if deeming their continued temporary detention necessary in order to finish the trial, the trial panel shall issue warrants on temporary detention until the hearing is over.

Article 279. Settlement of requests and proposals before opening of hearings

1. Before opening a hearing, the presiding judge shall settle the following requests and proposals:

a/ Requests of procurators and proceeding participants for provision or addition of evidence; summoning of witnesses, persons competent to conduct the proceedings and other proceeding participants to appear at the hearing; or replacement of members of the trial panel or the court clerk;

b/ Proposals of defendants or their representatives or defenders of the change or cancellation of deterrent measures or coercive measures;

c/ Proposals of procurators or proceeding participants for trial according to summary procedure, public or in-camera trial;

d/ Proposals of proceeding participants for their absence from the hearing.

2. If finding such requests and proposals grounded, the presiding judge shall settle them in accordance with his/her competence or notify them to competent persons for settlement in accordance with this Code and notify such to requesting and proposing persons. If the presiding judge rejects such requests and proposals, he/she shall notify in writing the refusal to requesting and proposing persons, clearly stating the reason.

Article 280. Return of case files for additional investigation

1. The presiding judge of a hearing shall issue a decision to return the case file to the procuracy for additional investigation in one of the following cases:

a/ Evidence used to prove one of the matters prescribed in Article 85 of this Code is insufficient and cannot be supplemented at the hearing;

b/ There is a ground to believe that in addition to the criminal act prosecuted by the procuracy, the accused has committed another act which is prescribed by the Penal Code as an offense;

c/ There is a ground to believe that there is another accomplice or another person committing an act related to the case which is prescribed by the Penal Code as an offense for which a criminal case has not yet been initiated or criminal proceedings against the accused have not yet been initiated;

d/ The initiation of the criminal case, initiation of criminal proceedings, or investigation or prosecution seriously violates the criminal procedure.

2. If the procuracy discovers a ground for returning the case file for additional investigation, it shall request in writing the court to return the case file.

3. A decision to return a case file for additional investigation must clearly state matters which need to be additionally investigated and shall be sent to the procuracy together with the case file within 3 days after it is issued.

If additional investigation results lead to the cessation of the case, the procuracy shall issue a decision to cease the case and notify such to the court within 3 days after the decision is issued.

If additional investigation results lead to the change of the prosecution decision, the procuracy shall issue a new indictment to replace the previous one.

If the procuracy cannot supplement the matters as requested by the court and keep the prosecution decision unchanged, the court shall proceed with the trial of the case.

Article 281. Suspension of cases

1. The presiding judge of a hearing shall issue a decision to suspend the case in one of the following cases:

a/ There are grounds specified at Points b and c, Clause 1, Article 229 of this Code;

b/ The whereabouts of the accused or defendant are unknown while the trial preparation time limit has expired; in this case, he/she shall request the investigation body to issue an arrest warrant against the accused or defendant before the case is suspended. The pursuit of the accused or defendant must comply with Article 231 of this Code;

c/ No results of the processing of legal documents as recommended by the court are obtained.

2. If the grounds for suspension of a case are not related to all of the accused or defendants involved in such case, it may be suspended with respect to each of the accused or defendants.

3. A decision to suspend a case must clearly state reasons for suspension of the case and the contents specified in Clause 2, Article 132 of this Code.

Article 282. Cessation of cases

1. The presiding judge of a hearing shall issue a decision to cease the case in one of the following cases:

a/ There is one of the grounds specified in Clause 2, Article 155, or at Points 3, 4, 5, 6 and 7, Article 157, of this Code;

b/ The procuracy withdraws the whole of the prosecution decision before the opening of the hearing.

If the grounds for cessation of a case are not related to all of the accused or defendants involved in such case, it may be ceased with respect to each of the accused or defendants.

2. A decision to cease a case must clearly state reasons for cessation of the case and the contents specified in Clause 2, Article 132 of this Code.

Article 283. Resumption of cases

1. In case there is a reason to cancel a decision to suspend or cease a case while the statute of limitations for penal liability examination has not yet expired, the judge that has issued such decision shall issue a decision to resume the case.

In case the judge that has issued the decision to suspend or cease the case cannot issue a decision to resume the case, the chief justice shall issue such decision.

2. For a case suspended or ceased with respect to each accused or defendant, a decision shall be issued to resume the case with respect to each accused or defendant.

3. A case resumption decision must clearly state the reason for resumption and the contents specified in Clause 2, Article 132 of this Code.

4. Upon resuming a case, the court may apply, change or cancel deterrent measures or coercive measures in accordance with this Code.

In case there are grounds as specified in this Code to apply the measure of temporary detention, the time limit for temporary detention for resuming the case must not exceed the trial preparation time limit.

Article 284. Requests for additional provision of documents and evidence by the procuracy

1. When deeming it necessary to additionally provide documents and evidence necessary for the settlement of a case without having to return the case file for additional investigation, the presiding judge of a hearing shall request the procuracy to additionally provide such documents and evidence.

2. A request for additional provision of documents and evidence must be in writing and clearly state documents and evidence to be additionally provided and shall be sent to the same-level procuracy within 2 days after it is made.

3. Within 5 days after receiving a request of the court, the procuracy shall send to the court documents and evidence requested to be additionally provided. If the procuracy fails to additionally provide such documents and evidence, the court shall proceed with the trial of the case.

Article 285. Withdrawal of prosecution decisions by the procuracy

When finding that there is one of the grounds specified in Article 157 of this Code or a ground specified in Article 16 or 29, or Clause 2, Article 91, of the Penal Code, the procuracy shall withdraw the prosecution decision before the opening of the hearing and request the court to cease the case.

Article 286. Handing and sending of rulings of first-instance courts

1. A decision to bring a case for trial shall be handed to defendants or their representatives; and sent to defense counsels, victims and involved parties at least 10 days before the opening of the hearing.

In case defendants are tried in absentia, the decision to bring the case for trial shall be handed to defense counsels or representatives of these defendants; it shall be also posted up at the offices of the People’s Committees of communes, wards or townships where the defendants last resided or of the bodies or organizations where they last worked or studied.

2. A decision of the court to suspend, cease or resume a case shall be handed to the accused or defendants, victims or their representatives and sent to other proceeding participants within 3 days after it is issued.

3. A decision to assign a judge to preside over the hearing, decision to bring the case for trial, or decision to suspend, cease or resume the case shall be sent to the same-level procuracy within 2 days after it is issued. A decision to cease or suspend a case shall be sent to the immediate higher-level procuracy within 2 days after it is issued.

4. A decision to apply, change or cancel deterrent measures or coercive measures shall be handed to the accused or defendants, same-level procuracy and detention facility where the accused or defendants are temporarily detained within 24 hours after it is issued.

Article 287. Summoning of persons who need to be questioned to hearings

Based on the decision to bring the case for trial and requests of the procurator, defense counsels and other proceeding participants, the presiding judge of the hearing shall summon persons who need to be questioned to the hearing.

Section III

GENERAL PROVISIONS ON THE PROCEDURE AT HEARINGS

Article 288. Appearance of members of trial panel and court clerk

1. A hearing may only be proceeded when all members of the trial panel and court clerk are present. Members of the trial panel shall hear the case from the beginning to the end.

2. If a judge or an assessor cannot continue hearing the case but there is an alternate judge or assessor who is present at the hearing from the beginning, the latter may replace the former as a member of the trial panel. If the trial panel has two judges but the presiding judge of the hearing cannot continue hearing the case, the judge being a member of the trial panel shall preside over the hearing and the alternate judge shall be added to act as a member of the trial panel.

3. If there is no alternate judge or assessor as the substitute or if the presiding judge of the hearing shall be replaced while there is no judge as the substitute under Clause 2 of this Article, the hearing shall be postponed.

4. If the court clerk is replaced or cannot participate in the hearing, the court may still proceed with the trial of the case if there is an alternate court clerk; if there is no substitute, the hearing shall be suspended.

Article 289. Appearance of procurators

1. A procurator of the same-level procuracy must be present to exercise the right to prosecution and supervise the trial at the hearing; if the procurator is absent, the hearing shall be postponed. For a serious and complicated case, there may be more than one procurator at the hearing. If a procurator cannot appear at the hearing, the alternate procurator who is present at the hearing from the beginning may act as the substitute to exercise the right to prosecution and supervise the trial at the hearing.

2. If the procurator is replaced or cannot continue to exercise the right to prosecution and supervise the trial while there is no alternate procurator as the substitute, the trial panel shall postpone the hearing.

Article 290. Appearance of defendants at hearings

1. Defendants shall appear at the hearing in response to the summonses of the court throughout the course of trial; any defendant who is absent not due to a force majeure event or an external obstacle shall be police-escorted to the hearing; if a defendant is absent due to a force majeure event or an external obstacle, the hearing shall be postponed.

If a defendant suffers from a mental disease or another fatal disease, the trial panel shall suspend the case until he/she recovers from the illness.

If a defendant absconds, the trial panel shall suspend the case and request the investigation body to pursue him/her.

2. The court may only try a defendant in absentia in the following cases:

a/ He/she has absconded and the pursuit has no result;

b/ He/she stays abroad and cannot be summoned to the hearing;

c/ He/she requests to be tried in absentia and his/her request is accepted by the trial panel;

d/ The absence of a defendant is not due to a force majeure event or an external obstacle and causes no obstruction to the trial.

Article 291. Appearance of defense counsels

1. Defense counsels must be present at the hearing to defend persons for whom they agreed to provide defense. Defense counsels may send in advance their written defenses to the court. If a defense counsel is absent from the hearing for the first time due to a force majeure event or an external obstacle, the court shall postpone the hearing, unless the defendant agrees to be tried without such defense counsel. If a defense counsel is absent not due to a force majeure event or an external obstacle or is duly summoned for the second time but he/she is still absent, the court shall still open the hearing.

2. If a defense counsel who is appointed under Clause 1, Article 76 of this Code is absent from the hearing, the trial panel shall postpone the hearing, unless the defendant or his/her representative agrees to be tried without such defense counsel.

Article 292. Appearance of victims, involved parties or their representatives

1. If victims, involved parties or their representatives are absent from the hearing, the trial panel shall decide, on a case-by-case basis, to postpone the hearing or proceed with the trial.

2. If deeming that the absence of victims or involved parties may obstruct only the payment of compensations for damage, the trial panel may separate the payment of compensations for damage from the case to be ruled later in accordance with law.

Article 293. Appearance of witnesses

1. Witnesses shall participate in a hearing to clarify circumstances of the case. If a witness is absent from the hearing but has earlier given his/her statements at the investigation body, the presiding judge of the hearing shall disclose such statements. If a witness expected to testify important matters of the case is absent, the trial panel shall decide, on a case-by-case basis, to postpone the hearing or proceed with the trial.

2. If a witness summoned by the court deliberately refuses to appear at the hearing not due to a force majeure event or an external obstacle and his/her absence obstructs the trial, the trial panel may decide to escort him/her in accordance with this Code.

Article 294. Appearance of expert witnesses and property valuators

1. When being summoned by the court, expert witnesses and property valuators shall participate in the hearing.

2. If an expert witness or a property valuator is absent, the trial panel shall decide, on a case-by-case basis, to postpone the hearing or still proceed with the trial.

Article 295. Appearance of interpreters and translators

1. When being summoned by the court, interpreters and translators shall participate in the hearing.

2. If an interpreter or a translator is absent while there is no one to substitute, the trial panel shall decide to postpone the hearing.

Article 296. Appearance of investigators and other persons

In the course of trial, when deeming it necessary, the trial panel may summon investigators and persons competent to conduct the proceedings who have accepted and settled the case and other persons to the hearing in order to present matters related to the case.

Article 297. Postponement of hearings

1. The court shall postpone a hearing in the following cases:

a/ There is one of the grounds prescribed in Articles 52, 53, 288, 289, 290, 291, 292, 293, 294 and 295 of this Code;

b/ It is necessary to verify or additionally collect evidence, documents and objects, as this work cannot be performed immediately at the hearing;

c/ Additional expert assessment or expert re-assessment is required;

d/ Property valuation or property revaluation is required.

If the hearing is postponed, the case shall be tried again from the beginning.

2. The time limit for postponement of a first-instance hearing must not exceed 30 days from the date of issuance of the decision to postpone the hearing.

3. A decision to postpone a hearing must have the following principal detail:

a/ Date of issuance;

b/ Name of the court and full names of judges, assessors and court clerk;

c/ Full name of the procurator exercising the right to prosecution and supervising the trial at the hearing;

d/ The case brought for trial;

dd/ Reason for postponing the hearing;

e/ Time and venue for resuming the hearing.

4. A decision to postpone a hearing shall be signed by the presiding judge of the hearing on behalf of the trial panel. If the presiding judge of the trial is absent or replaced, the chief justice of the court shall issue a decision to postpone the hearing.

The decision to postpone the hearing shall be immediately notified to proceeding participants present at the hearing; and sent to the same-level procuracy and persons who are absent from the hearing within 2 days from the date of issuance.

Article 298. Limits of trial

1. The court shall try defendants and their offenses for which they are prosecuted by the procuracy and decided by the court to be brought for trial.

2. The court may try a defendant under a clause different from that of the same article under which the procuracy has prosecuted him/her or for another offense equally serious or less serious than the one for which he/she is prosecuted by the procuracy.

3. If deeming it necessary to try a defendant for an offense more serious than the one for which he/she is prosecuted by the procuracy, the court shall return the case file to the procuracy for re-prosecution and clearly notify the reason to the defendant or his/her representative and defense counsel. If the procuracy keeps the offense for which it has prosecuted the defendant unchanged, the court may try the defendant for the more serious offense.

Article 299. Making of the court’s judgments and rulings

1. A judgment shall be discussed and adopted by the trial panel in the deliberation room.

2. A decision on replacement of a member of the trial panel, procurator, court clerk, expert witness, property valuator, interpreter or translator, suspension or cessation of the case, postponement of the hearing, arrest for temporary detention or release of a defendant shall be discussed and adopted in the deliberation room and made in writing.

3. Decisions on other matters which shall be discussed and adopted by the trial panel in the courtroom are not required to be made in writing but shall be recorded in the hearing transcript.

Section IV

PROCEDURES FOR STARTING HEARINGS

Article 300. Preparation for opening of hearings

Before opening a hearing, the court clerk shall:

1. Check the presence of persons summoned by the court; if any person is absent, the reason shall be given;

2. Announce the internal rules of the hearing.

Article 301. Opening of hearings

1. The presiding judge of a hearing shall open the hearing and read the decision to bring the case for trial.

2. The court clerk shall report to the trial panel on the presence or absence of the persons who have been summoned by the court and reasons for their absence.

3. The presiding judge shall check again the presence of the persons at the hearing in response to summonses of the court and check their personal details and inform them of their rights and obligations.

Article 302. Settlement of requests for replacement of judges, assessors, procurators, court clerks, expert witnesses, property valuators, interpreters and translators

The presiding judge shall ask procurators and other proceeding participants who are present at the hearing whether they wish to request replacement of judges, assessors, procurators, court clerk, expert witnesses, property valuators, interpreters or translators, and reasons for the requested change. If any person makes such a request, the trial panel shall consider and decide thereon.

Article 303. Pledges of interpreters, translators, expert witnesses and property valuators

After explaining the rights and obligations of interpreters, translators, expert witnesses and property valuators to them, the presiding judge of the hearing shall request these persons to pledge to fulfill their tasks.

Article 304. Pledges of witnesses and isolation of witnesses

1. After explaining the rights and obligations of witnesses to them, the presiding judge shall request witnesses to pledge to make truthful testimonies.

2. Before witnesses are questioned about the case, the presiding judge shall decide to apply a measure to prevent a witness from hearing other witnesses’ testimonies or contacting related persons. If testimonies of defendants and witnesses may affect one another, the presiding judge of the hearing shall decide to separate defendants from witnesses before asking questions to witnesses.

Article 305. Settlement of requests for examination of evidence and postponement of hearings due to absence of persons

The presiding judge of a hearing shall ask procurators and proceeding participants who are present at the hearing whether they wish to request the court to summon more witnesses or to present more exhibits and documents for examination. If any of proceeding participants is absent or, although he/she is present at the hearing, unable to take part in the proceedings due to his/her health conditions, the presiding judge shall also ask whether any person requests postponement of the hearing; if any person make such a request, the trial panel shall consider and decide on the postponement.

Section V

ADVERSARIAL PROCEDURE AT HEARINGS

Article 306. Pronouncement of indictments

Before an inquiry, procurators shall pronounce indictments and present additional opinions (if any). Their additional opinions must not worsen the condition of defendants.

Article 307. Order of inquiring

1. The trial panel shall fully identify circumstances about each matter, each offense in the case, and each person. The presiding judge of the hearing shall arrange a reasonable order of inquiring and decide on the succession of persons to be inquired. 

2. When inquiring a person, the presiding judge of the hearing shall ask questions first and then shall decide to let judges, assessors, procurators, defense counsels, and defenders of lawful rights and interests of involved parties inquire.

Proceeding participants at the hearing may request the presiding judge to ask additional questions about circumstances which need to be clarified.

Expert witnesses and property valuators may ask questions about matters related to the expert assessment and property valuation.

3. During the inquiry, the trial panel shall examine related exhibits in the case.

Article 308. Disclosure of testimonies given at the stage of investigation or prosecution  

1. If an inquired person is present at the hearing, the trial panel and procurators may not disclose his/her testimonies given at the stage of investigation or prosecution.

2. Testimonies given at the stage of investigation or prosecution may only be disclosed in one of the following cases:

a/ Testimonies of persons inquired at the hearing contradict their testimonies given at the stage of investigation or prosecution;

b/ Inquired persons refuse to give testimonies at the hearing or cannot remember their testimonies given at the stage of investigation or prosecution;

c/ Inquired persons request disclosure of their testimonies given at the stage of investigation or prosecution;

d/ Persons to be inquired are absent from the hearing or have died.

3. In a special case of necessity to keep state secrets, preserve the fine national traditions and customs, keep professional secrets, business secrets or personal secrets of individuals or family secrets at the request of proceeding participants or when deeming it necessary, the trial panel may refuse to disclose documents in the case file.

Article 309. Inquiry of defendants

1. The presiding judge of a hearing shall decide to ask questions separately to each defendant. If testimonies of a defendant may affect those of another, the presiding judge of the hearing shall isolate the defendants. An isolated defendant shall be informed of testimonies of the previously inquired defendant and may ask questions to such defendant.

2. A defendant shall present his/her opinions on the indictment and circumstances of the case. The trial panel shall further inquire about insufficient or contradictory points in the defendant’s testimonies.

Procurators may ask questions to defendants about evidence, documents and objects related to the inculpation or exculpation and other circumstances of the case.

Defense counsels may ask questions to defendants about evidence, documents and objects related to the defense and other circumstances of the case.

Defenders of lawful rights and interests of victims and involved parties may ask questions to defendants about circumstances related to the defense of the rights and interests of involved parties.

Proceeding participants at the hearing may request the presiding judge of the hearing to further ask about circumstances related to them.

3. If defendants refuse to answer questions, the trial panel, procurators, defense counsels and defenders of lawful rights and interests of victims and involved parties shall continue to inquire other persons and examine exhibits and documents relating to the case.

When allowed by the presiding judge of the hearing, a defendant may ask questions to other defendants about matters related to him/her.

Article 310. Inquiry of victims, involved parties or their representatives

Victims, involved parties or their representatives shall present circumstances of the case which are related to them. Subsequently, the trial panel, procurators, defense counsels and defenders of lawful rights and interests of victims and involved parties shall further ask about insufficient or contradictory points in their testimonies.

When allowed by the presiding judge of the hearing, a defendant may ask victims, involved parties or their representatives about matters related to him/her.

Article 311. Inquiry of witnesses

1. The inquiry shall be conducted separately for each witness, letting no other witnesses know contents of such inquiry.

2. When inquiring a witness, the trial panel shall ask questions to clarify his/her relationship with defendants and involved parties in the case. The presiding judge of the hearing shall request the witness to clearly present circumstances of the case which he/she knows, then inquire further about insufficient or contradictory points in his/her testimonies. Procurators, defense counsels, defenders of lawful rights and interests of victims and involved parties may further ask the witness.

When allowed by the presiding judge, a defendant may ask witnesses about matters related to him/her.

3. After giving their testimonies, witnesses shall stay in the courtroom in case they may be further questioned.

4. In case there is a ground to determine that the life, health, property, honor or dignity of a witness or his/her relatives are harmed or threatened to be harmed, the trial panel shall decide to apply measures to protect them in accordance with this Code and other relevant laws.

5. In case of necessity, the court shall decide to inquire witnesses through a computer network or telecommunications network.

Article 312. Examination of exhibits

1. Exhibits and photos or written records certifying exhibits shall be presented for examination at the hearing.

When necessary, the trial panel may, together with procurators, defense counsels and other participants in the hearing, come to examine on the spot exhibits which cannot be brought to the hearing. The on-spot examination of exhibits shall be recorded in writing as prescribed in Article 133 of this Code.

2. Procurators, defense counsels and other participants in the court hearing may present their remarks on exhibits. The trial panel, procurators, defense counsels, defenders of lawful rights and interests of victims and involved parties may further inquire persons participating the court hearing about matters related to the exhibits.

Article 313. Listening and watching of audio-recorded or audio-video recorded contents

In case of necessity to examine evidence, documents and objects related to the case or when a defendant denounces that extortion of statements or corporal punishment has been applied to him/her, the trial panel shall decide to let relevant audio-recorded or audio-video recorded contents be listened to or watched at the hearing.

Article 314. On-spot examination

When deeming it necessary, the trial panel may, together with procurators, defense counsels and other participants in the court hearing, come to examine the place where the offense was committed or other places related to the case. Procurators, defense counsels and other participants in the court hearing may give their remarks on the place where the offense was committed or other places related to the case. The trial panel may further ask the participants in the court hearing about matters related to the case.

An on-spot examination shall be recorded in writing as prescribed in Article 133 of this Code.

Article 315. Presentation and disclosure of reports and documents of bodies and organizations

Reports and documents of bodies and organizations on circumstances of a case shall be presented by representatives of such bodies and organizations. If no representative of such bodies and organizations is present, the trial panel shall announce such reports and documents at the court hearing.

Procurators, defendants, defense counsels and other participants in the court hearing may give their remarks on such reports and documents and further ask representatives of bodies and organizations and other participants in the court hearing about matters related to such reports and documents.

Article 316. Inquiry of expert witnesses and property valuators

1. The trial panel may request at its own discretion or at the proposal of procurators, defense counsels and other participants in the court hearing expert witnesses and property valuators to present their conclusions on matters subject to expert assessment and on property valuation. While presenting their expert assessment and property valuation conclusions, expert witnesses and property valuators may give additional explanations about  and grounds for making such conclusions.

2. Procurators, defense counsels and other proceeding participants present at the court hearing may give remarks on expert assessment and property valuation conclusions, ask about unclear or contradictory matters in such conclusions, or about matters which are contradictory to other circumstances of the case.

3. If expert witnesses and property valuators are not present at the court hearing, the presiding judge shall announce their expert assessment and property valuation conclusions.

4. When deeming it necessary, the trial panel shall decide to solicit additional expert assessment, expert re-assessment or property revaluation.

Article 317. Investigators, procurators, other persons competent to conduct the proceedings and proceeding participants present their opinions

When deeming it necessary, the trial panel may ask at its own discretion or at the request of proceeding participants investigators, procurators, other persons competent to conduct the proceedings and other proceeding participants to present their opinions to clarify procedural decisions and acts at the stages of investigation, prosecution and trial.

Article 318. Completion of inquiry

When deeming that all circumstances of the case have been fully examined, the presiding judge shall ask procurators, defendants, defense counsels and other participants in the court hearing whether they request to inquire about any other matters. If no more inquiry is requested, the inquiry shall be completed. If any of them makes a request and the presiding judge considers such request reasonable, he/she shall decide to continue the inquiry.

Article 319. Procurators withdraw prosecution decisions or make conclusions on less serious offenses at hearings

After the inquiry is completed, procurators may withdraw part or the whole of the prosecution decisions or make conclusions on less serious offenses.

Article 320. Order of presentation of arguments

1. After the inquiry is completed, procurators shall present arraignments. If there is no ground for making conviction, procurators shall withdraw the whole prosecution decisions and request the court to declare defendants innocent.

2. Defendants shall present their defenses; defense counsels shall present defenses for defendants; defendants and their representatives may provide additional defenses.

3. Victims, involved parties and their representatives shall present opinions to protect their rights and interests. If there are defenders of their lawful rights and interests, these defenders may present or additionally present their opinions.

4. For a case initiated at the request of victims, these victims or their representatives shall present or additionally present their opinions after procurators present arraignments.

Article 321. Arraignments presented by procurators

1. Arraignments presented by procurators must be based on documents, evidence and objects already examined at the court hearing and opinions of defendants, defense counsels, defenders of lawful rights and interests of victims, involved parties, and other proceeding participants at the hearing.

2. Arraignments must objectively, comprehensively and fully analyze and assess inculpatory evidence and exculpatory evidence; the nature and danger to the society of criminal acts; consequences of criminal acts; personal details and roles of defendants in the case; offenses, penalties, applied points, clauses and articles of the Penal Code, circumstances aggravating and extenuating the penal liability; level of compensation for damage, handling of exhibits, and judicial measures; causes and conditions of the commission of offenses and other circumstances significant to the case.

3. Procurators shall propose conviction against defendants according to part or the whole of the indictments or making conclusions on a less serious offense; propose principal penalties, additional penalties, judicial measures, liability to pay compensation for damage, and handling of exhibits.

4. Procurators shall propose measures to prevent criminal offenses and violations of law.

Article 322. Arguments at hearings

1. Defendants, defense counsels and other proceeding participants may present their opinions, evidence, documents and arguments to counter the opinions of prosecutors on inculpatory evidence and exculpatory evidence; the nature and danger to the society of criminal acts; consequences of criminal acts; personal backgrounds and roles of defendants in the case; circumstances aggravating and extenuating the penal liability; penalties; civil liability, handling of exhibits, and judicial measures; causes and conditions of the commission of offenses and other circumstances significant to the case.

Defendants, defense counsels and other proceeding participants may make their own proposals.

2. Prosecutors shall present evidence, documents and arguments to counter at length each opinion of defendants, defense counsels and other proceeding participants at the hearing.

Persons participating in the argument process have the right to respond to opinions of others.

3. The presiding judge may not limit the time for argument and shall create conditions for prosecutors, defendants, defense counsels, victims and other proceeding participants to argue and fully present their opinions but may stop opinions irrelevant to the case or repetitive opinions.

The presiding judge shall request procurators to respond to opinions of defense counsels and other proceeding participants which have not been replied by procurators.

4. The trial panel shall listen to and record all opinions of prosecutors, defendants, defense counsels and persons participating in the argument at the hearing in order to objectively and comprehensively assess the facts of the case. If the trial panel does not accept opinions of a participant in the court hearing, it shall clearly state the reason and record such opinions in the judgment.

Article 323. Resumption of inquiry

If the trial panel finds out through the argument process that there are circumstances of the case not yet inquired or clarified, it shall decide to resume the inquiry. The argument process shall be continued once the inquiry is completed.

Article 324. Final words of defendants

1. If participants in the argument process make no more arguments, the presiding judge of a hearing shall declare to complete the argument process.

2. Defendants may have their final words. No more questions may be asked when defendants say their final words. If, in their final words, defendants additionally present new circumstances significant to the case, the trial panel shall decide to resume the inquiry. The trial panel may request defendants not to present matters irrelevant to the case but may not limit the length of time for them to say.

Article 325. Consideration of withdrawal of prosecution decisions or conclusions on less serious offenses at hearings

1. When procurators withdraw part of the prosecution decision or make conclusion on a less serious offense, the trial panel shall continue with the trial of the case.

2. If procurators withdraw the whole of the prosecution decision, the trial panel shall, before deliberating the judgment, request participants in the court hearing to present their opinions on the withdrawal of the prosecution decision.

Section VI

DELIBERATION AND PRONOUNCEMENT OF
JUDGMENTS

Article 326. Deliberation of judgments

1. Only judges and assessors may deliberate judgments. The deliberation of judgments shall take place in deliberation rooms.

The presiding judge of the court hearing who chairs the judgment deliberation shall put forward each matter of the case for the trial panel to discuss and decide. The presiding judge shall make or assign a member of the trial panel to make a minutes of judgment deliberation. Members of the trial panel shall settle all matters of the case by majority vote on each matter. Assessors shall vote first and judges vote last. If none of the opinions secures a majority vote, each of them shall be discussed and voted on again to determine which opinion secures a majority vote. Persons holding minority opinions may present their opinions in writing which shall be included in the case file.

2. The deliberation of judgments shall be based only on evidence and documents already verified at the hearing and on the adequate and comprehensive examination of evidence of the case, opinions of prosecutors, defendants, defense counsels and other proceeding participants.

3. Matters of the case to be settled in the deliberation include:

a/ Whether the case is subject to suspension or return of the case file for additional investigation;

b/ Legality of evidence and documents collected by the investigation body, investigators, procuracy and procurators; and those provided by lawyers, the accused, defendants and other proceeding participants;

c/ Whether there are grounds to convict the defendants. In case there are sufficient grounds to convict the defendants, applied points, clauses and articles of the Penal Code shall be clearly identified;

d/ Penalties and judicial measures to be applied against the defendants; liability to pay compensation for damage; civil matters in the criminal case;

dd/ Whether the defendants are eligible for exemption from the penal liability or penalties;

e/ Criminal and civil court fees; handling of exhibits; distrained property, blocked property;

g/ Legality of procedural acts and decisions of investigators, procurators and defense counsels in the course of investigation, prosecution and trial;

h/ Proposals on crime prevention and violation remediation.

4. If procurators withdraw the whole of the prosecution decision, the trial panel shall settle matters of the case according to the order prescribed in Clause 1 of this Article. If there are grounds to determine the defendants are not guilty, the trial panel shall declare the defendants not guilty. If finding the withdrawal of the prosecution decision is ungrounded, the trial panel shall decide to suspend the case and make proposals to the chief procurator of the same-level procuracy or immediate higher-level procuracy.

5.  For a case involving many complicated circumstances, the trial panel may decide to extend the time limit for judgment deliberation which must not exceed 7 days after the argument at the hearing is completed. The trial panel shall notify all the persons present at the hearing and proceeding participants absent from the hearing of the time, date and place of judgment pronouncement.

6. Upon completion of the judgment deliberation, the trial panel shall decide one of the following:

a/ Making and pronouncing the judgment;

b/ Resuming the inquiry and argument if there is a circumstance of the case not yet inquired about or clarified;

c/ Returning the case file to the procuracy for additional investigation; requesting the procuracy to provide additional documents and evidence;

d/ Suspending the case.

The trial panel shall notify the persons present at the hearing and proceeding participants absent from the hearing of the decision prescribed at Point c or d of this Clause.

7. If discovering an offense left unpunished, the trial panel shall decide on the initiation of a criminal case under Articles 18 and 153 of this Code.

Article 327. Pronouncement of judgments

The presiding judge of the court hearing or another member of the trial panel shall read the judgment. In case of in-camera trial, only rulings in the judgment shall be read. After reading the judgment, the presiding judge or such member of the trial panel may additionally explain about the execution of the judgment and the right to appeal.

Article 328. Release of defendants

In the following cases, the trial panel shall declare right at the court hearing the immediate release of the defendants who are temporarily detained, provided that they are not temporarily detained for another offense:

1. The defendants are not guilty;

2. The defendants are exempt from the penal liability or penalties;

3. The defendants are given penalties other than imprisonment;

4. The defendants are given imprisonment penalties but entitled to suspension of their sentences;

5. The imprisonment term is equal to or shorter than the period during which the defendants have been temporarily detained.

Article 329. Arrest of defendants for temporary detention after judgments are pronounced

1. For a temporarily detained defendant who is sentenced to imprisonment, if deeming it necessary to continue to temporarily detain him/her to secure the execution of the judgment, the trial panel shall issue a decision on temporary detention of the defendant, except for the cases specified in Clauses 4 and 5, Article 328 of this Code.

2. For a defendant who is not temporarily detained, if he/she is sentenced to imprisonment, he/she shall only be arrested for temporary detention in order to serve the penalty when the judgment takes legal effect. The trial panel may issue a decision to immediately arrest the defendant for temporary detention at the court hearing if there is a ground to believe that he/she may abscond or continue to commit an offense.

3. The time limit for temporary detention of defendants prescribed in Clauses 1 and 2 of this Article is 45 days from the date of judgment pronouncement.

4. For a defendant sentenced to death, the trial panel shall decide in the judgment the continued temporary detention of him/her to secure the execution of the judgment.

Chapter XXII

APPELLATE TRIAL

Section I

NATURE OF APPELLATE TRIAL AND
THE RIGHT TO APPEAL AND PROTEST

Article 330. Nature of appellate trial

1. Appellate trial means re-trial of a case or review of a first-instance ruling of a court directly by an immediate higher-level court when the first-instance judgment or ruling on such case has not yet taken legal effect and is appealed or protested against.

2. First-instance ruling appealed or protested against means a ruling on suspension or cessation of the case, ruling on suspension of the case for the accused or defendant, ruling on cessation of the case for the accused or defendant, or another ruling of a first-instance court as prescribed in this Code.

Article 331. Persons entitled to appeal

1. Defendants, victims and their representatives may appeal first-instance judgments or rulings.

2. Defense counsels may appeal in order to protect interests of persons aged under 18 and persons with mental or physical defects whom they defend.

3. Civil plaintiffs, civil defendants and their representatives may appeal parts of judgments or rulings related to the payment of compensations for damage.

4. Persons with interests or obligations related to a case and their representatives may appeal parts of judgments or rulings related to their interests or obligations.

5. Defenders of lawful rights and interests of victims and involved parties who are aged under 18 or persons with mental or physical defects may appeal parts of judgments or rulings related to interests and obligations of persons whom they defend.

6. Persons who are declared not guilty by the court may appeal against the grounds based on which first-instance judgments determine that they are not guilty.

Article 332. Procedures for appeal

1. An appellant shall send his/her appeal to the court that has conducted the first-instance trial or to the appellate court.

For a defendant who is temporarily detained, the superintendent of the detention camp or head of the custody facility shall guarantee that the defendant can exercise the right to appeal, receive his/her appeal and transfer it to the first-instance court that has made the judgment or ruling which is appealed.

An appellant may present his/her appeal directly to the court that has conducted the first-instance trial or to the appellate court. The court shall record in writing such appeal as prescribed in Article 133 of this Code.

The appellate court that has made a written record of the appeal or received the appeal shall send such record or appeal to the first-instance court to handle according to general regulations.

2. An appeal must contain the following principal details:

a/ Date of making;

b/ Full name and address of the appellant;

c/ Reason for the appeal and request of the appellant;

d/ Signature or fingerprint of the appellant.

3. Enclosed with an appeal or accompanied by the direct presentation of an appeal are additional evidence, documents and objects (if any) to prove that the appeal is grounded.

Article 333. Time limit for appeal

1. The time limit for appealing a first-instance judgment is 15 days from the date of pronouncement of the judgment. For defendants and involved parties absent from the hearing, the time limit for appeal shall be counted from the date on which they receive the judgment or the judgment is posted up in accordance with law.

2. The time limit for appealing a first-instance ruling is 7 days from the date persons having the right to appeal receive such ruling.

3. The date of appeal shall be determined as follows:

a/ If the appeal is sent by post, the date of appeal is the date of the postmark of the sending post office;

b/ If the appeal is sent via the superintendent of the detention camp or head of the custody facility, the date of appeal is the date the superintendent of the detention camp or head of the custody facility receives such appeal. The superintendent of the detention camp or head of the custody facility shall write the date of receipt of appeal and sign for certification of the receipt on the appeal;

c/ If the appellant files the appeal with the court, the date of appeal is the date of receipt of the appeal by the court. If the appellant presents the appeal directly to the court, the date of appeal is the date on which the court makes a written record of the appeal.

Article 334. Procedures for receiving and processing appeals

1. After receiving an appeal or a written record of the appeal, the first-instance court shall record it in a register and check its validity in accordance with this Code.

2. If the appeal is valid, the first-instance court shall notify the appeal under Article 338 of this Code.

3. If the appeal is valid but the appeal contents are unclear, the first-instance court shall immediately notify such to the appellant for clarification.

4. If contents of the appeal comply with this Code but the time limit for appeal has expired, the first-instance court shall request the appellant to give the reason for the late filing of the appeal and present evidence, documents and objects (if any) to prove that this reason is plausible.

5. If a person filing an appeal does not have the right to appeal, within 3 days after receiving the appeal, the court shall return the appeal and notify in writing the return to such person and the same-level procuracy. Such a notice must clearly state the reason for returning the appeal.

The return of the appeal may be complained about within 7 days after the notice is received. The settlement of complaints must comply with Chapter XXXIII of this Code.

Article 335. Overdue appeals

1. An overdue appeal may be accepted if the appellant cannot file it within the time limit prescribed in this Code due to a force majeure event or an external obstacle.

2. Within 3 days after receiving an overdue appeal, the first-instance court shall forward the appeal and the appellant’s written explanation of the late filing and accompanying evidence, documents and objects (if any) to the appellate court.

3. Within 10 days after receiving an overdue appeal and accompanying evidence, documents and objects (if any), the appellate court shall form a panel composed of 3 judges to consider the overdue appeal. The panel considering the overdue appeal may issue a decision to accept or reject the overdue appeal which must clearly state the reason for the acceptance or rejection of the overdue appeal.

4. A meeting to consider an overdue appeal shall be participated by the procurator of the same-level procuracy. Within 3 days before considering the overdue appeal, the appellate court shall send a copy of the overdue appeal and accompanying evidence, documents and objects (if any) to the same-level procuracy. Procurators shall present the procuracy’s view on the consideration of the overdue appeal. 

5. The decision of the panel considering the overdue appeal shall be sent to the person filing such appeal, first-instance court and procuracy at the same level with the appellate court.

If the appellate court accepts the overdue appeal, the first-instance court shall carry out the procedures prescribed in this Code and send the case file to the appellate court.

Article 336. Protests of the procuracy

1. The same-level procuracy or immediate higher-level procuracy may protest against a first-instance judgment or ruling.

2. A protest decision of the procuracy must have the following principal details:

a/ Date of issuance and serial number of the decision;

b/ Name of the procuracy issuing the decision;

c/ Whether the protest is against the whole or part of the first-instance judgment or ruling;

d/ Reason and grounds for the protest and requests of the procuracy;

dd/ Full name and position of the person signing the protest decision.

Article 337. Time limit for protest

1. The time limit for the same-level procuracy or immediate higher-level procuracy to protest against a judgment of the first-instance court is 15 days or 30 days respectively from the date the court pronounces the judgment.

2. The time limit for the same-level procuracy or immediate higher-level procuracy to protest against a ruling of the first-instance court is 7 days or 15 days respectively after the court makes the ruling.

Article 338. Notification of appeals, sending of protest decisions

1. An appeal shall be notified in writing by the first-instance court to the same-level procuracy and persons related to such appeal within 7 days from the date of expiration of the time limit for appeal. The notification must clearly state requests of the appellant.

2. Within 2 days after issuing a protest decision, the procuracy shall send it together with additional evidence, documents and objects (if any) to the court that has conducted the first-instance trial and to defendants and persons related to the protest. The procuracy that protests shall send the protest decision to other procuracies competent to protest.

3. Proceeding participants that are notified of the appeal or protest may send their written opinions on contents of such appeal or protest to the appellate court. Their opinions shall be included in the case file.

Article 339. Consequences of appeals and protests

Parts of a judgment or ruling of the court which are appealed or protested against shall not be executed, except the cases specified in Article 363 of this Code. When the whole judgment or ruling is appealed or protested against, the whole judgment or decision shall not be executed, except the cases specified in Article 363 of this Code.

The first-instance court shall send the case file, appeal or protest and accompanying evidence, documents and objects (if any) to the appellate court within 7 days from the date of expiration of the time limit for appeal or protest.

Article 340. Acceptance of cases

1. Immediately after receiving the file of a case being appealed or protested against and accompanying evidence, documents and objects (if any), the appellate court shall record in the case acceptance register. 

2. Within 3 days after accepting a case, the chief justice of the appellate court shall assign a judge to preside over the court hearing or meeting.

Article 341. Transfer of case files to the procuracy

1. After accepting a case, the appellate court shall transfer the case file to the same-level procuracy. Within 15 days for a provincial-level procuracy or military zone-level military procuracy or 20 days for a superior people’s procuracy or the Central Military Procuracy after receiving the case file, the procuracy has to return it to the court. For a case involving a particularly serious and complicated offense, this time limit may be extended for no more than 25 days for a provincial-level procuracy or military zone-level military procuracy or 30 days for a superior people’s procuracy or the Central Military Procuracy.

2. If the appellate court receives additional evidence, documents and objects before conducting the trial, it shall transfer such evidence, documents and objects to the same-level procuracy. Within 3 days after receiving additional evidence, documents and objects, the procuracy shall return them to the court.

Article 342. Change, supplementation and withdrawal of appeals and protests

1. Before the opening of a court hearing or at a court hearing, an appellant may change or supplement his/her appeal while the procuracy that has issued a protest decision may change or supplement its protest without worsening the situation of the defendants; the appellant may withdraw part or the whole of his/her appeal while the procuracy that has issued a protest decision or the immediate higher-level procuracy may withdraw part or the whole of its protest.

2. The change, supplementation or withdrawal of the appeal or protest before the opening of a court hearing shall be made in writing and sent to the appellate court. The appellate court shall notify the procuracy, defendants and persons related to the appeal or protest of the change, supplementation or withdrawal. The change, supplementation or withdrawal of the appeal or protest at a court hearing shall be recorded in the hearing transcript.

3. If an appellant withdraws part of his/her appeal or the procuracy withdraws part of its protest at the court hearing which is deemed unrelated to other appeals or protests, the appellate trial panel shall judge the withdrawal of part of the appeal or protest and rule to cease the trial of such part of the appeal or protest in the appellate judgment.

Article 343. Effect of first-instance judgments and rulings of the court not appealed or protested against

A first-instance judgment or ruling of the court or parts thereof which are not appealed or protested against shall take legal effect on the date of expiration of the time limit for appeal or protest.

Section II

PROCEDURES FOR APPELLATE TRIAL

Article 344. Courts with jurisdiction to conduct appellate trial

1. Provincial-level people’s courts have the jurisdiction to conduct appellate trial with regard to judgments and rulings of district-level people’s courts which are appealed or protested against.

2. Superior people’s courts have the jurisdiction to conduct appellate trial with regard to judgments and rulings of provincial-level people’s courts falling under their territorial jurisdiction which are appealed or protested against.

3. Military zone-level military courts have the jurisdiction to conduct appellate trial with regard to judgments and rulings of regional military courts which are appealed or protested against.

4. The Central Military Court has the jurisdiction to conduct appellate trial with regard to judgments and rulings of military zone-level military courts which are appealed or protested against.

Article 345. Scope of appellate trial

The appellate court shall review contents of judgments and rulings which are appealed or protested against. If deeming it necessary, it may review other parts of judgments and rulings which are not appealed or protested against.

Article 346. Time limit for preparing appellate trial

1. A provincial-level people’s court or military zone-level military court shall open an appellate hearing within 60 days and a superior people’s court or the Central Military Court shall open an appellate hearing within 90 days after receiving a case file.

2. Within 45 days for a provincial-level people’s court or military zone-level military court or 75 days for a superior people’s court or the Central Military Court after accepting a case, the presiding judge of the hearing shall issue one of the following decisions:

a/ To cease the appellate trial;

b/ To bring the case for appellate trial.

3. Within 15 days after issuing a decision to bring a case for trial, the court shall open an appellate hearing.

4. At least 10 days before opening a hearing, the appellate court shall send the decision to bring the case for trial to the same-level procuracy, defense counsels, victims, defenders of lawful rights and interests of victims and involved parties, appellants, and persons with interests or obligations related to the appeal or protest.

Article 347. Application, change or cancellation of deterrent measures and coercive measures

1. After accepting a case, the appellate court may decide to apply, change or cancel deterrent measures and coercive measures.

The application, change or cancellation of the measure of temporary detention shall be decided by the chief justice or deputy chief justice of the court. The application, change or cancellation of other deterrent measures and coercive measures shall be decided by the presiding judge of the hearing.

2. The time limit for temporary detention for trial preparation must not exceed the time limit for appellate trial preparation prescribed in Article 346 of this Code.

If the time limit for temporary detention of defendants has not expired and it is deemed necessary to continue to temporarily detain the defendants, the appellate court shall apply the temporary detention time limit under the temporary detention decision of the first-instance court. If the time limit for temporary detention of defendants stated in the temporary detention decision of the first-instance court has expired, the chief justice or deputy chief justice of the court shall issue a new temporary detention decision.

For a defendant in temporary detention, if deeming it necessary to continue his/her temporary detention to complete the trial, the trial panel shall make a ruling to temporarily detain him/her until the hearing is over.

3. For a defendant in temporary detention, if he/she is sentenced to imprisonment and the time limit for his/her temporary detention expires by the date the hearing ends, the trial panel shall make a ruling to temporarily detain him/her to secure the execution of the judgment, except the cases specified in Clauses 4 and 5, Article 328 of this Code.

For a defendant not in temporary detention, if he/she is sentenced to imprisonment, the trial panel may make a ruling to arrest him/her for temporary detention right after pronouncing the judgment.

The temporary detention time limit is 45 days from the date of pronouncement of the judgment.

Article 348. Cessation of appellate trial

1. The appellate court shall cease the appellate trial of a case where the appellant has withdrawn the whole appeal or the procuracy has withdrawn the whole protest. The cessation of appellate trial before the opening of a hearing or at a hearing shall be decided by the presiding judge of the hearing or trial panel respectively. The first-instance judgment will take legal effect on the date of issuance of the decision to cease the appellate trial by the appellate court.

2. If the appellant withdraws part of the appeal or the procuracy withdraws part of the protest before the opening of a hearing which is found unrelated to other appeals or protests, the presiding judge of the hearing shall issue a decision to cease the appellate trial of the withdrawn part of the appeal or protest.

3. A decision to cease appellate trial must clearly state the reason for cessation and the contents prescribed in Clause 2, Article 132 of this Code.

Within 3 days after issuing a decision to cease appellate trial, the appellate court shall send it to the same-level procuracy, court that has conducted the first-instance trial, defense counsels, victims, involved parties, defenders of lawful rights and interests of victims and involved parties, appellant and persons with rights or obligations related to the appeal or protest.

Article 349. Appearance of members of the appellate trial panel and court clerks

1. A hearing can be proceeded only when all members of the trial panel and the court clerk are present. Members of the trial panel shall hear the case from the beginning to the end of the hearing.

2. If a judge cannot continue to hear the case and there is an alternate judge who is present at the hearing from the beginning, he/she may substitute as a member of the trial panel. If the presiding judge of the hearing cannot continue to hear the case, one judge being a member of the trial panel shall preside over the hearing and the alternate judge shall be added as a member of the trial panel.

3. If there is no alternate judge or the presiding judge of the hearing must be replaced without any judge to substitute, the hearing shall be postponed.

4. If the court clerk is replaced or cannot continue to participate in the hearing, the court may still hear the case if there is an alternate court clerk. If there is no substitute, the hearing shall be suspended.

Article 350. Appearance of procurators

1. A procurator of the same-level procuracy must be present to exercise the right to prosecution and supervise the trial at the hearing, and if such procurator is absent, the hearing shall be postponed. For a serious and complicated case, there may be more than one procurator. If the procurator cannot attend the hearing, the alternate procurator who is present at the hearing from the beginning may act as the substitute to exercise the right to prosecution and supervise the trial at the hearing.

2. If the procurator is replaced or cannot continue to exercise the right to prosecution and supervise the trial without any alternate procurator to substitute, the trial panel shall postpone the hearing.

Article 351. Appearance of defense counsels, defenders of lawful rights and interests of victims, involved parties, appellants and persons with rights or obligations related to appeals or protests

1. Defense counsels, defenders of lawful rights and interests of victims, involved parties, appellants and persons with rights or obligations related to appeals or protests who are summoned to the hearing must be present at the hearing. If any of them is absent, the trial panel shall decide as follows:

a/ If a defense counsel is absent for the first time due a force majeure event or an external obstacle, the hearing shall be postponed, unless defendants agree to be tried in the absence of such defense counsel. If a defense counsel is absent for the first time not due to a force majeure event or an external obstacle, or after he/she has been duly summoned for the second time, the court shall still proceed with the trial.

If a defense counsel who is appointed under Clause 1, Article 76 of this Code is absent, the hearing shall be postponed, unless defendants or their representatives agree to be tried in the absence of such defense counsel;

b/ In case an appellant or a person with interests or obligations related to the appeal or protest who is a victim or an involved party and his/her representative, a defender of lawful rights and interests of a victim or an involved party is absent not due to a force majeure event or an external obstacle, the trial panel shall still proceed with the trial. If such a person is absent due to a force majeure event or an external obstacle, the trial panel may proceed with the trial but may not make a judgment or ruling unfavorable for such victim or involved party.

c/ If a defendant who files an appeal or is subject to an appeal or a protest is absent due to a force majeure event or an external obstacle, the trial panel may still proceed with the trial but may not make a judgment or ruling unfavorable for such defendant. If a defendant is absent due to a force majeure event or an external obstacle and his/her absence does not obstruct the trial, the trial panel shall still proceed with the trial.

3. If deeming it necessary, the appellate court shall decide to summon other persons to participate in the hearing.

Article 352. Postponement of appellate hearings

1. The appellate court may only postpone a hearing in one of the following cases:

a/ There is one of the grounds prescribed in Articles 52, 53, 349, 350 and 351 of this Code;

b/ The verification or collection of additional evidence, documents and objects is necessary but cannot be performed right at the hearing.

In case of postponement of a hearing, the case shall be tried again from the beginning.

2. The time limit for postponement of an appellate hearing and postponement decisions must comply with Article 297 of this Code.

Article 353. Addition and examination of evidence, documents and objects

1. Before opening or at an appellate hearing, the procuracy may add new evidence at its own discretion or at the request of the court. Appellants and persons with interests or obligations related to appeals or protests, defense counsels and defenders of lawful rights and interests of victims and involved parties may also add evidence, documents and objects.

2. Old evidence, new evidence, newly added documents and objects shall all be examined at the appellate hearing. Appellate judgments shall be based on both old and new evidence.

Article 354. Procedures of appellate hearings

1. Procedures for opening an appellate hearing and procedures for adversarial process at an appellate hearing shall be carried out like those for a first-instance hearing but before the inquiry, a member of the trial panel shall present brief contents of the case and rulings in the first-instance judgment, and contents of the appeal or protest.

2. The presiding judge of the hearing shall ask the appellant whether he/she wishes to change, supplement or withdraw his/her appeal. If he/she so wishes, the presiding judge of the hearing shall request the procurator to present his/her opinions on the change, supplementation or withdrawal of the appeal.

The presiding judge of the hearing shall ask the procurator whether he/she wishes to change, supplement or withdraw the procuracy’s protest. If he/she so wishes, the presiding judge of the hearing shall request defendants and persons related to the protest to present their opinions on the change, supplementation or withdrawal of the protest.

3. In the adversarial process at the hearing, procurators and other persons related to the appeal or protest shall present their opinions on contents of such appeal or protest. Procurators shall present the procuracy’s view on the settlement of the case.

Article 355. Jurisdiction of the appellate trial panel over first-instance judgments

1. The appellate trial panel may:

a/ Reject appeals or protests and uphold the first-instance judgment;

b/ Modify the first-instance judgment;

c/ Cancel the first-instance judgment and transfer the case file for re-investigation or re-trial;

d/ Cancel the first-instance judgment and cease the case;

dd/ Cease the appellate trial.

2. An appellate judgment takes legal effect on the date of pronouncement.

Article 356. Rejection of appeals and protests and upholding of first-instance judgments

The appellate court shall reject appeals and protests and uphold the first-instance judgment when finding that rulings in such first-instance judgment are well grounded and lawful.

Article 357. Modification of first-instance judgments

1. When there is a ground to determine that the pronounced first-instance judgment is not true to the nature, seriousness and consequences of the criminal act, personal details of defendants or there is a new circumstance, the appellate trial panel may modify the first-instance judgment as follows:

a/ To exempt defendants from the penal liability or penalties; to apply no additional penalties; to apply no judicial measures;

b/ To apply an article or a clause of the Penal Code on a less serious offense;

c/ To commute penalties for the defendants;

d/ To reduce the level of compensation for damage and modify the decision on handling of exhibits;

dd/ To change to lighter penalties;

e/ To keep unchanged or commute the imprisonment penalty and hand down a suspended sentence.

2. When requested by the procuracy that files a protest or by a victim that files an appeal, the appellate trial panel may:

a/ Increase penalties, apply an article or a clause of the Penal Code on a more serious offense; apply additional penalties; apply judicial measures;

b/ Increase the level of compensation for damage;

c/ Change to heavier penalties;

d/ Refuse to give the defendants suspended sentences.

If there is a ground, the trial panel may still reduce the penalties, apply an article or a clause of the Penal Code on a less serious offense, change to lighter penalties, retain the imprisonment term and hand down suspended sentences and reduce the level of compensation for damage.

3. If there is a ground, the appellate trial panel may modify the first-instance judgment under Clause 1 of this Article for defendants who do not file an appeal or are not subject to an appeal or a protest.

Article 358. Cancellation of first-instance judgments for re-investigation or re-trial

1. The appellate trial panel shall cancel a first-instance judgment for re-investigation in the following cases:

a/ There is a ground to believe that the first-instance level has left an offense or offender unpunished; or in order to initiate a case involving or investigate an offense more serious than that pronounced in the first-instance judgment;

b/ The investigation at the first-instance level is inadequate but cannot be supplemented at the appellate level;

c/ There is a serious violation of the procedure at the stage of investigation or prosecution.

2. The appellate trial panel shall cancel the first-instance judgment for re-trial at the first-instance level by a new trial panel in the following cases:

a/ The composition of the first-instance trial panel is insufficient as prescribed by this Code;

b/ There is a serious violation of the procedure at the stage of first-instance trial;

c/ There is a ground to believe that a person who has been declared not guilty by the first-instance court had committed an offense;

d/ The exemption from the penal liability or penalties for, or application of a judicial measure to, defendants is ungrounded;

dd/ The first-instance judgment contains a serious error in the application of law which is, however, not serious enough for the appellate trial panel to modify the judgment under Article 357 of this Code.

3. When canceling a first-instance judgment for re-investigation or re-trial, the appellate trial panel shall clearly state in writing the reason for cancellation.

4. When canceling a first-instance judgment for re-trial, the appellate trial panel may neither decide in advance on evidence which the first-instance court shall accept nor reject nor decide in advance on points, clauses or articles of the Penal Code which shall be applied and penalties against defendants.

5. In case of canceling a first-instance judgment for re-investigation or re-trial while the time limit for temporary detention of defendants has expired and if deeming it necessary to continue the temporary detention of defendants, the appellate trial panel shall issue a decision to continue the temporary detention of defendants until the procuracy or court at the first-instance level re-accepts the case.

Within 15 days after the first-instance judgment is canceled, the case file shall be transferred to the procuracy or court at the first-instance level for settlement according to the general procedures prescribed in this Code.

Article 359. Cancellation of first-instance judgments and cessation of cases

1. If there is one of the grounds prescribed in Clauses 1 and 2, Article 157 of this Code, the appellate trial panel shall cancel the first-instance judgment, declare the defendants not guilty, and cease the case;

2. If there is one of the grounds prescribed in Clauses 3, 4, 5, 6 and 7, Article 157 of this Code, the appellate trial panel shall cancel the first-instance judgment and cease the case.

Article 360. Re-investigation or re-trial of criminal cases

1. After the appellate trial panel cancels the first-instance judgment for re-investigation, the competent investigation body, procuracy and court at the first-instance level shall conduct the investigation, prosecution and trial of the case again according to the general procedure prescribed in this Code.

2. After the appellate trial panel cancels the first-instance judgment for re-trial, the first-instance court with jurisdiction shall re-try the case according to the general procedure prescribed in this Code.

Article 361. Jurisdiction of the appellate trial panel over first-instance rulings

1. The appellate trial panel may:

a/ Reject appeals and protests and uphold rulings of the first-instance court when deeming such rulings are well-grounded and lawful;

b/ Modify rulings of the first-instance court;

c/ Cancel rulings of the first-instance court and transfer the case file to the first-instance court to further settle the case.

2. An appellate ruling takes legal effect on the date of making.

Article 362. Procedures for appellate review of first-instance rulings

1. When carrying out appellate procedures for first-instance rulings which are appealed or protested against, the appellate trial panel shall summon appellants, defense counsels, defenders of lawful rights and interests of involved parties, and persons with interests or obligations related to appeals or protests to participate in the court meeting. If they are absent, the appellate trial panel shall still proceed with the meeting.

2. Within 15 days after accepting a case file, the court shall hold a meeting to review the first-instance ruling which is appealed or protested against.

Within 10 days after issuing a decision to hold a meeting, the appellate trial panel shall hold such meeting. Within 2 days after issuing the decision, the court shall transfer the case file enclosed with the decision to hold a meeting to the same-level procuracy. Within 5 days after receiving the case file, the procuracy shall return the case file to the court.

3. At the meeting, a member of the appellate trial panel shall present brief contents of the first-instance ruling and appeal or protest and accompanying evidence, documents and objects (if any).

A procurator of the same-level procuracy must be present at the meeting and present the procuracy’s view on the settlement of the appeal or protest before the appellate trial panel makes a ruling.

Part FIVE

A NUMBER OF PROVISIONS ON THE EXECUTION OF
THE COURT’S JUDGMENTS AND RULINGS

Chapter XXIII

THE COURT’S JUDGMENTS AND RULINGS TO BE IMMEDIATELY EXECUTED AND THE JURISDICTION TO ISSUE JUDGMENT EXECUTION DECISIONS

Article 363. The court’s judgments and rulings to be immediately executed

If a defendant is under temporary detention when the first-instance court decides to cease the case, declare such defendant not guilty, exempt him/her from the penal liability or penalty, hand down a non-custodial penalty or an imprisonment penalty against him/her but entitle him/her to a suspended sentence or the imprisonment term is equal to or shorter than the period of his/her temporary detention, the court’s judgment or ruling shall be immediately executed although it may still be appealed or protested against.

The penalty of caution shall be executed right at the court hearing.

Article 364. Jurisdiction and procedures for issuing judgment execution decisions

1. The chief justice of the court that has conducted the first-instance trial may issue or entrust the chief justice of another court at the same level to issue a judgment execution decision.

2. The time limit for issuing a judgment execution decision is 7 days after the first-instance judgment or ruling takes legal effect or from the date of receipt of the appellate judgment or ruling, cassation ruling or reopening ruling.

Within 7 days after receiving a decision to entrust the judgment execution of the chief justice of the court that has conducted the first-instance trial, the entrusted chief justice shall issue a judgment execution decision.

3. If a person sentenced to imprisonment is on bail, a decision on execution of the imprisonment sentence must clearly state that within 7 days after receiving the decision such person must be present at the criminal judgment enforcement body of the district-level police office in order to serve his/her sentence.

If a person sentenced to imprisonment on bail absconds, the chief justice of the court that has issued the judgment execution decision shall request the criminal judgment enforcement body of the provincial-level Public Security Department of the locality where such person is on bail to issue a pursuit warrant.

Article 365. Explanation and modification of the court’s judgments and rulings

1. The criminal judgment enforcement body, civil judgment enforcement body, procuracy, convicts, victims and involved parties related to the execution of a judgment may request the court that has made the judgment or ruling to explain or modify unclear points in such judgment or ruling for execution.

2. The presiding judge of the hearing who has made a judgment or ruling shall explain or modify unclear points in such judgment or ruling. If the presiding judge of the hearing is unable to do so, the explanation or modification shall be performed by the chief justice of the court that has made such judgment or ruling.

Article 366. Settlement of recommendations with regard to the court’s judgments and rulings

If the criminal judgment enforcement body or civil judgment enforcement body recommends in writing the review of a court’s judgment or ruling according to the cassation or reopening procedures, the court with jurisdiction shall make a reply within 90 days after receiving the written recommendation. For a complicated case, the time limit for making a reply may be extended for no more than 120 days from the date of receiving the written recommendation.

Chapter XXIV

A NUMBER OF PROCEDURES FOR EXECUTION OF DEATH PENALTY, CONSIDERATION OF EARLY CONDITIONAL RELEASE AND EXPUNCTION OF CRIMINAL RECORDS

Article 367. Procedures for reviewing death sentences before they are executed

1. The procedures for reviewing a death sentence before it is executed are prescribed as follows:

a/ After a death sentence takes legal effect, the case file shall be immediately sent to the Chief Justice of the Supreme People’s Court and the judgment shall be immediately sent to the Procurator General of the Supreme People’s Procuracy;

b/ After examining the case file to decide whether to protest according to the cassation or reopening procedures, the Supreme People’s Court shall transfer the case file to the Supreme People’s Procuracy. Within 1 month after receiving the case file, the Supreme People’s Procuracy shall return the case file to the Supreme People’s Court;

c/ Within 2 months after receiving the case file, the Chief Justice of the Supreme People’s Court and Procurator General of the Supreme People’s Procuracy shall decide whether to protest according to the cassation or reopening procedures;

d/ Within 7 days after the judgment takes legal effect, the convict may send an amnesty petition to the State President;

dd/ The death sentence shall be executed unless it is protested against by the Chief Justice of the Supreme People’s Court or the Procurator General of the Supreme People’s Procuracy according to the cassation or reopening procedures and the convict sends an amnesty petition to the State President.

If the death sentence is protested against according to the cassation or reopening procedures but the cassation trial panel or reopening trial panel of the Supreme People’s Court decides to reject such protest and uphold the death sentence, the Supreme People’s Court shall immediately notify such to the convict so that he/she can make a petition for death penalty commutation;

e/ If the convict makes a petition for death penalty commutation, the death sentence shall be executed after the State President rejects the petition.

2. If there is a ground prescribed in Clause 3, Article 40 of the Penal Code, the chief justice of the court that has conducted the first-instance trial shall issue no death sentence execution decision and report such to the Chief Justice of the Supreme People’s Court for considering the commutation of the death penalty to life imprisonment for the convict.

Article 368. Procedures for consideration of early conditional release

1. Prisons; detention camps of the Ministry of Public Security, detention camps of the Ministry of National Defense, criminal judgment enforcement bodies of provincial-level public security departments or military zone-level criminal judgment enforcement bodies shall compile dossiers of request for early conditional release and transfer them to provincial-level people’s procuracies, military zone-level military procuracies, provincial-level people’s courts or military zone-level military courts of localities where prisoners are serving their imprisonment sentences.

A dossier of request for early conditional release must comprise:

a/ The prisoner’s written request for early conditional release stating his/her commitment not to violate the law and obligations to be fulfilled before early release is given;

b/ Copies of the legally effective judgment and the judgment execution decision;

c/ A copy of the decision on reduction of the imprisonment sentence serving period, for persons convicted of serious, very or particularly serious offenses;

d/ Papers and documents showing the completed serving of the additional penalty being a fine, payment of court fee and fulfillment of civil obligations;

dd/ Documents on personal background and family circumstances of the prisoner;

e/ Assessment results of the quarterly, biannually and annually serving of the imprisonment sentence; commendation and reward decisions or written certification by a competent body of merits made by the prisoner (if any);

g/ A written request of the dossier-compiling body for early release.

2. A written request of the dossier-compiling body for early release must contain the following principal details:

a/ Serial number and date of the request;

b/ Full name, position and signature of the person competent to make the request;

c/ Full name, gender, year of birth and residence of the prisoner; place where the prisoner is expected to serve the probation period;

d/ Period during which the prisoner has served the imprisonment sentence; the remaining period of serving the imprisonment sentence;

dd/ Remarks and request of the dossier-compiling body.

3. Within 15 days after receiving a dossier of request for early release, the provincial-level people’s procuracy or military zone-level military procuracy shall issue a document showing its view on the requested early conditional release.

If the procuracy requests the dossier-compiling body to add documents, within 3 days after receiving the request, the dossier-compiling body shall add documents and send them to the procuracy and the court.

4. Within 15 days after receiving a dossier of the requesting body, the chief justice of the provincial-level people’s court or military zone-level military court shall hold a meeting to consider the early conditional release; and at the same time notify such in writing to the same-level procuracy to assign a procurator to attend the meeting. If the court requests the dossier-compiling body to add documents, within 3 days after receiving the request, the dossier-compiling body shall add documents and send them to the court and the procuracy.

5. The panel for consideration of early conditional release must be composed of the chief justice and 2 judges and chaired by the chief justice.

6. At the meeting, a member of the panel shall make a brief presentation on the dossier of request. The procurator shall present the procuracy’s view on the request for early conditional release of the requesting body and the observance of law in considering and deciding on early conditional release. The representative of the dossier-compiling body may have an additional presentation to clarify the request for early conditional release.

7. The meeting to consider early conditional release shall be recorded in a minutes. Such minutes must clearly state the date and venue of the meeting; participants; contents and proceedings of the meeting and the decision of the panel on accepting or rejecting the request for early conditional release for each prisoner.

At the end of the meeting, the procurator shall read the meeting minutes and request writing of changes and supplements (if any) in the minutes; the chairperson of the panel shall check the minutes and, together with the meeting clerk, sign it.

8. Within 3 days after issuing a decision on early conditional release, the court shall send it to the prisoner, same-level procuracy, immediate higher-level procuracy, body that has compiled the dossier of request, court that has issued the judgment execution decision, criminal judgment enforcement body of the district-level police office or military zone-level criminal judgment enforcement body, administration of the commune, ward or township where the prisoner entitled to early conditional release will reside, military unit assigned to manage him/her, and provincial-level Justice Department of the locality where the court issuing the decision is located.

9. Right after receiving a decision on early conditional release, the prison or detention facility shall announce such decision and carry out procedures for executing it. If the person entitled to the early conditional release does not violate the provisions of Clause 4, Article 66 of the Penal Code during the probation period, upon the expiration of the probation period, the criminal judgment enforcement body of the district-level police office or military zone-level criminal judgment enforcement body that manages such person shall issue a written certification of complete serving of the imprisonment sentence.

10. If a person entitled to early release violates the provisions of Clause 4, Article 66 of the Penal Code, the criminal judgment enforcement body of the district-level police office of the locality where such person resides or the military unit assigned to manage such person shall compile a dossier and transfer it to the procuracy and the court that has issued the decision on early conditional release for canceling such decision and forcing such person to serve the remaining imprisonment penalty.

Within 5 days after receiving a dossier of request, the court shall hold a meeting to consider and decide on cancellation of the decision on early conditional release.

Within 3 days after issuing a decision to cancel the decision on early conditional release, the court shall send it to the bodies and individuals prescribed in Clause 8 of this Article.

11. The procuracy may protest against and the prisoner may complain about the decision on accepting or rejecting the request for early conditional release or decision on cancellation of the decision on early conditional release.

The order, procedures and competence for settling protests against or complaints about decisions prescribed in this Clause must comply with the provisions of Chapters XXII and XXXIII of this Code.

Article 369. Procedures for expunction of criminal records

1. Within 5 days after receiving a request of a person entitled to automatic expunction of criminal records and deeming that all the conditions prescribed in Article 70 of the Penal Code are satisfied, the body managing the judicial record database shall grant a judicial record card certifying that he/she has no criminal records.

2. In the cases specified in Articles 71 and 72 of the Penal Code, the expunction of criminal records shall be decided by the court. A convict shall send a written request for expunction bearing remarks of the administration of the commune, ward or township where he/she resides or body or organization where he/she works or studies to the court that has conducted the first-instance trial of the case.

Within 3 days after receiving a written request for expunction of criminal records of the convict, the court that has conducted the first-instance trial shall transfer documents relating to the request to the same-level procuracy. Within 5 days after receiving the documents from the court, the same-level procuracy shall give its written opinions and return the documents to the court.

If deeming that all the conditions are satisfied, within 5 days after receiving the documents from the procuracy, the chief justice of the court that has conducted the first-instance trial shall issue a decision on expunction of criminal records. If the conditions are not fully satisfied, the request shall be rejected.

Within 5 days after issuing a decision on expunction of criminal records or decision to reject the request for expunction of criminal records, the court shall send it to the convict, same-level procuracy, administration of the commune, ward or township where the convict resides or body or organizations where he/she works or studies.

Part SIX

REVIEW OF LEGALLY EFFECTIVE JUDGMENTS AND RULINGS

Chapter XXV

CASSATION PROCEDURES

Article 370. Nature of cassation trial

Cassation trial means the review of the court’s legally effective judgments or rulings which are protested against upon the detection of serious violations of law in the settlement of criminal cases.

Article 371. Grounds to file protests according to the cassation procedures

A court’s legally effective judgment or ruling shall be protested against according to the cassation procedures when there is one of the following grounds:

1. The conclusion in the court’s judgment or ruling is not true to the objective circumstances of the case;

2. There is a serious violation of the procedure in the investigation, prosecution or trial which leads to a serious error in the settlement of the case;

3. There is a serious error in the application of law.

Article 372. Discovery of legally effective judgments and rulings which need to be reviewed according to the cassation procedures

1. Convicts, bodies, organizations and all individuals may discover violations of law in the court’s legally effective judgments and rulings and notify them to persons competent to file protests.

2. Provincial-level people’s courts shall inspect legally effective judgments and rulings of district-level people’s courts in order to discover violations of law and propose chief justices of superior people’s courts and the Chief Justice of the Supreme People’s Court to consider filing protests.

Military zone-level military courts shall inspect legally effective judgments and rulings of regional military courts in order to discover violations of law and propose the Chief Justice of the Central Military Court to consider filing protests.

3. If the court or procuracy, through inspecting or supervising the trial or through other sources of information, discovers violations of law in the court’s legally effective  judgments and rulings, it shall notify such in writing to persons competent to file protests.

Article 373. Persons competent to file protests according to the cassation procedures

1. The Chief Justice of the Supreme People’s Court and Procurator General of the Supreme People’s Procuracy may file protests according to the cassation procedures against legally effectively judgments and rulings of superior people’s courts; against legally effectively judgments and rulings of other courts when deeming it necessary, except for rulings of the Judicial Council of the Supreme People’s Court.

2. The Chief Justice of the Central Military Court and Procurator General of the Central Military Procuracy may file protests according to the cassation procedures against legally effective judgments and rulings of military zone-level military courts and regional military courts.

3. Chief justices of superior people’s courts and chief procurators of superior people’s procuracies may file protests according to the cassation procedures against legally effective judgments and rulings of provincial-level people’s courts and district-level people’s courts under their respective territorial jurisdiction.

Article 374. Procedures for notifying the court’s legally effective judgments and rulings which need to be reviewed according to the cassation procedures

1. Upon detecting a violation of law in a court’s legally effective judgment or ruling, a convict, a body, an organization or an individual may send a notice thereof or directly present it together with evidence, documents and objects (if any), to a person competent to file protests or to the nearest court or procuracy.

2. A notice of violation must have the following principal details:

a/ Date of issuance;

b/ Name and address of the notifying body, organization or individual;

c/ The court’s legally effective judgment or ruling in which a violation of law is detected;

d/ Content of the detected violation;

dd/ Proposal to a competent person to consider filing a protest.

3. A notifying individual shall give his/her signature or fingerprint on the notice; the at-law representative of a notifying body or organization shall give his/her signature and append the seal of such body or organization.

Article 375. Procedures for receipt of notices of the court’s legally effective  judgments and rulings which need to be reviewed according to the cassation procedures

1. Upon receiving a written notice, the court or procuracy shall record it in the notice register.

2. When a convict, a body, an organization or an individual directly reports a violation of law in a court’s legally effective judgment or ruling, the court or procuracy shall make a written record thereof. If the notifying person provides evidence, documents and objects, the court or procuracy shall make a written record of the seizure as prescribed in Article 133 of this Code.

3. The court or procuracy that has received a notice and made a written record thereof shall immediately send them together with evidence, documents and objects (if any) to the person competent to file protests and notify such in writing to the proposing or requesting convict, body, organization or individual.

Article 376. Transfer of case files for consideration of protest according to the cassation procedures 

1. When necessary to study a case file for consideration of protest according to the cassation procedures, the competent court or procuracy shall request in writing the court managing such case file to transfer it.

Within 7 days after receiving a written request, the court managing the case file shall transfer it to the requesting court or procuracy.

2. If the court and procuracy both make written requests, the court managing the case file shall transfer the case file to the body that makes the request first and notify such to the body that makes the request later.

Article 377. Suspension of execution of judgments and rulings protested against according to the cassation procedures

A person who issues a decision to protest according to the cassation procedures against a legally effective judgment or ruling may decide to suspend the execution of such judgment or ruling.

A decision to suspend the execution of a judgment or ruling which is protested against according to the cassation procedures shall be sent to the courts and procuracies that have conducted the first-instance and appellate trial and to the competent judgment enforcement body.

Article 378. Decisions to protest according to the cassation procedures

A decision to protest according to the cassation procedures must have the following principal details:

1. Serial number and date of the decision;

2. Person competent to issue the decision;

3. Serial number and date of the judgment or ruling protested against;

4. Remarks on and an analysis of violations of law and errors of the judgment or ruling protested against;

5. Legal bases for making the decision;

6. Decision to protest against the whole or part of the judgment or ruling;

7. Name of the court having jurisdiction to conduct the cassation trial of the case;

8. Requests of the protester.

Article 379. Time limit for protesting according to the cassation procedures

1. A protest unfavorable to a convict may only be filed within 1 year after the judgment or ruling takes legal effect.

2. A protest favorable to a convict may be filed at any time, even in the case where the convict is dead but it is still necessary to prove his/her innocence.

3. A civil protest in a criminal case with regard to an involved party shall be filed in accordance with the law on civil procedure.

4. If there is no ground to protest according to the cassation procedures, a person having the power to protest shall notify in writing the body, organization or individual that has requested protest of the reason for refusal to protest.

Article 380. Sending of decisions to protest according to the cassation procedures

1. A decision to protest according to the cassation procedures shall be immediately sent to the court that has rendered the legally effective judgment or ruling which is protested against, the convict, competent criminal judgment enforcement body and civil judgment enforcement body and other persons with rights and obligations related to the protest content.

2. If the Chief Justice of the Supreme People’s Court protests, the protest decision enclosed with the case file shall be immediately sent to the court having jurisdiction to conduct cassation trial.

If the chief justice of a superior people’s court or Chief Justice of the Central Military Court protests, the protest decision enclosed with the case file shall be immediately sent to the competent procuracy.

The court having jurisdiction to conduct cassation trial shall send the protest decision enclosed with the case file to the same-level procuracy. Within 30 days after receiving the case file, the procuracy shall return the case file to the court.

3. If the Procurator General of the Supreme People’s Procuracy, chief procurator of a superior people’s procuracy or Procurator General of the Central Military Procuracy protests, the protest decision enclosed with the case file shall be immediately sent to the court having jurisdiction to conduct cassation trial.

Article 381. Change, supplementation and withdrawal of protests

1. Before the opening of or at a cassation hearing, a protester may supplement or change his/her protest provided that the time limit for protest has not yet expired. The supplementation or change of a protest before the opening of a hearing shall be effected under a decision which shall be sent under Clause 1, Article 380 of this Code. The change or supplementation of a protest at a hearing shall be recorded in the hearing transcript.

2. Before the opening of or at a cassation hearing, a protester may withdraw part or the whole of his/her protest. The withdrawal of a protest before the opening of a hearing shall be effected under a decision. The withdrawal of a protest at a hearing shall be recorded in the hearing transcript.

3. If the whole protest is withdrawn before the opening of the hearing, the chief justice of the court having jurisdiction to conduct cassation trial shall issue a decision to cease the cassation trial. If the whole protest is withdrawn at the hearing, the trial panel shall issue a decision to cease the cassation trial.

Within 2 days after issuing a decision to cease the cassation trial, the court shall send it to the persons specified in Clause 1, Article 380 of this Code and to the same-level procuracy.

Article 382. Jurisdiction to conduct cassation trial

1. The judicial committee of a superior people’s court shall conduct cassation trial through a trial panel composed of 3 judges with regard to legally effective judgments and rulings of provincial-level people’s courts or district-level people’s courts which are protested against under its territorial jurisdiction.

2. The plenary panel of the judicial committee of a superior people’s court shall conduct cassation trial with regard to legally effective judgments and rulings of people’s courts mentioned in Clause 1 of this Article which are complicated or those which have been reviewed according to the cassation procedures by the judicial committee of the superior people’s court through a trial panel composed of 3 judges who could not reach agreement on a decision on the settlement of the case.

When cassation trial is conducted by the plenary panel of the judicial committee of a superior people’s court, at least two thirds of total members of the committee must participate in the panel with the chief justice of the superior people’s court presiding over the hearing. The decision of the plenary panel of the judicial committee shall be voted for by more than half of total members of the plenary panel. If the decision is not voted for by more than half of total members of the plenary panel of the judicial committee, the hearing shall be postponed. Within 30 days after issuing a decision to postpone the hearing, the plenary panel of the judicial committee shall open a hearing to retry the case.

3. The Judicial Committee of the Central Military Court shall conduct cassation trial with regard to legally effective judgments and rulings of military zone-level military courts or regional military courts which are protested against. When cassation trial is conducted, at least two-thirds of total members of the Judicial Committee of the Central Military Court must participate in the trial panel with the Chief Justice of the Central Military Court presiding over the hearing. The decision of the Judicial Committee shall be voted for by more than half of total members. If the decision is not voted for by more than half of total members of the Judicial Committee, the hearing shall be postponed. Within 30 days after issuing the decision to postpone the hearing, the Judicial Committee shall open a hearing to retry the case.

4. The Judicial Council of the Supreme People’s Court shall conduct cassation trial through a trial panel composed of 5 judges with regard to legally effective judgments and rulings of superior people’s courts or the Central Military Court which are protested against.

5. The Plenary Panel of Judges of the Supreme People’s Court shall conduct cassation trial with regard to legally effective judgments and rulings mentioned in Clause 4 of this Article which are complicated or those which have been reviewed according to the cassation procedures by the Judicial Council of the Supreme People’s Court through a trial panel composed of 5 judges who could not reach agreement on a decision on the settlement of the case.

When cassation trial is conducted by the Plenary Panel of Judges of the Supreme People’s Court, at least two thirds of total members must participate in the Panel with the Chief Justice of the Supreme People’s Court presiding over the hearing. The decision of the Plenary Panel of Judges of the Supreme People’s Court shall be voted for by more than half of total members. If the decision is not voted by more than half of total members of the Plenary Panel of Judges, the hearing shall be postponed. Within 30 days after issuing the decision to postpone the hearing, the Plenary Panel of Judges shall open a hearing to retry the case.

6. If legally effective judgments and rulings which are protested against fall under the jurisdiction to conduct cassation trial of courts of different levels, the Judicial Council of the Supreme People’s Court shall conduct cassation trial of the whole case.

Article 383. Participants in cassation hearings

1. A cassation hearing shall be participated by procurators of the same-level procuracy.

2. When deeming it necessary or there is a ground to modify part of a legally effective judgment or ruling, the court shall summon the convict, defense counsel and persons with interests and obligations related to the protest to participate in the cassation hearing. Even if they are absent, the cassation hearing shall still be proceeded.

Article 384. Preparation for cassation hearings

The chief justice of the court shall assign a judge who is a member of the cassation trial panel to make a presentation on the case. The presentation must summarize the content of the case, judgments and rulings of the courts at different levels, and the content of the protest.

The written presentation and related documents shall be sent to the members of the cassation trial panel at least 7 days before the opening of the cassation hearing.

Article 385. Time limit for opening cassation hearings

Within 4 months after receiving a protest decision enclosed with the case file, the court having the jurisdiction to conduct cassation trial shall open a hearing.

Article 386. Procedures at cassation hearings

1. After the presiding judge opens the hearing, a member of the cassation trial panel shall read the presentation on the case. Other members of the cassation trial panel may ask the presenter additional questions about unclear points before discussing and presenting their opinions on the settlement of the case. If the procuracy files the protest, a procurator shall present the content of the protest.

2. If the convict, defense counsel and persons with interests and obligations related to the protest are present at the hearing, they may present their opinions on the matters requested by the cassation trial panel.

The procurator shall present opinions of the procuracy on the protest decision and the settlement of the case.

The procurator and proceeding participants at the cassation hearing shall argue about matters related to the settlement of the case. The presiding judge of the hearing shall create favorable conditions for them to present all their opinions and democratically and equally present their arguments before the court.

3. Members of the cassation trial panel shall present their opinions and discuss. The cassation trial panel shall vote on the settlement of the case and announce the decision on the settlement of the case.

Article 387. Scope of cassation trial

The cassation trial panel shall examine the whole case without limiting itself to reviewing the contents of the protest.

Article 388. Jurisdiction of the cassation trial panel

1. To reject protests and uphold legally effective judgments and rulings which are protested.

2. To cancel legally effective judgments and rulings and fully restore lawful judgments and rulings of the first-instance court or appellate court which have been unlawfully canceled or modified.

3. To cancel legally effective judgments and rulings for re-investigation or re-trial.

4. To cancel legally effective judgments and rulings and cease the case.

5. To modify legally effective judgments and rulings.

6. To cease the cassation trial.

Article 389. Rejection of protests and upholding of legally effective judgments and rulings which are protested against

The cassation trial panel shall reject protests and uphold legally effective judgments and rulings which are protested against when finding such judgments and rulings are grounded and lawful.

Article 390. Cancellation of legally effective judgments and rulings and upholding of lawful judgments and rulings of the first-instance court or appellate court which have been unlawfully canceled or modified unchanged

The cassation trial panel shall issue decisions to cancel legally effective judgments and rulings and uphold lawful judgments and rulings of the first-instance court or appellate court which have been unlawfully canceled or modified.

Article 391. Cancellation of legally effective judgments and rulings for re-investigation or re-trial

The cassation trial panel shall cancel part or the whole of a legally effective judgment or ruling for re-investigation or re-trial if there is one of the grounds prescribed in Article 371 of this Code. If cancelling a judgment or ruling for re-trial, the cassation trial panel may, on a case-by-case basis, decide re-trial to be conducted from the first-instance or appellate level.

When deeming it necessary to continue the temporary detention of defendants, the cassation trial panel shall issue a decision on temporary detention of defendants until the procuracy or court re-accepts the case.

Article 392. Cancellation of legally effective judgments and rulings and cessation of cases

The cassation trial panel shall cancel legally effective judgments and rulings and cease the case if there is one of the grounds prescribed in Article 157 of this Code.

Article 393. Modification of legally effective judgments and rulings

The cassation trial panel shall modify legally effective judgments and rulings when all the following conditions are satisfied:

1. Documents and evidence in the case file are clear and sufficient;

2. The modification of such judgments and rulings neither changes the nature of the case nor worsens the situation of the convicts nor causes unfavorable effects to the victims and involved parties.

Article 394. Cassation rulings

1. The cassation trial panel shall issue cassation rulings in the name of the Socialist Republic of Vietnam.

2. A cassation ruling must have the following details:

a/ Date and venue of the hearing;

b/ Full names of members of the cassation trial panel;

c/ Full name of the procurator exercising the right to prosecution and supervising the trial at the hearing;

d/ Name of the case brought for cassation trial;

dd/ Full names, age and addresses of the convict and other persons with related rights and obligations as specified in the cassation ruling;

e/ Summarized content of the case, rulings of the legally effective judgment or legally effective rulings which are protested against;

g/ Protest decision and grounds for protest;

h/ Assessments of the cassation trial panel, including an analysis of the grounds for accepting or rejecting the protest;

i/ Points, clauses and articles of the Criminal Procedure Code and Penal Code based on which the cassation trial panel makes its ruling;

k/ Decisions of the cassation trial panel.

Article 395. Effect of cassation rulings and sending of cassation rulings

1. A ruling of the cassation trial panel takes legal effect on the date it is made.

2. Within 10 days after making a cassation ruling, the cassation trial panel shall send it to the convict and protester; the same-level procuracy; the procuracies and courts that have conducted the first-instance trial and appellate trial; competent criminal judgment enforcement body and competent civil judgment enforcement body, and persons with interests and obligations related to the protest or their representatives; and send a notice thereof to the administration of the commune, ward or township where the convict resides or the body or organization where he/she works or studies.

Article 396. Time limit for transfer of case files for re-investigation or re-trial

If the cassation trial panel decides to cancel legally effective judgments and rulings for re-investigation, within 15 days after such decision is issued, the case file shall be transferred to the same-level procuracy for re-investigation according to the general procedures prescribed in this Code.

If the cassation trial panel decides to cancel legally effective judgments and rulings for re-trial of the case at the first-instance or appellate level, within 15 days after such decision is issued, the case file shall be transferred to the court with jurisdiction for re-trial according to the general procedures prescribed in this Code.

Chapter XXVI

REOPENING PROCEDURES

Article 397. Nature of reopening trial

Reopening trial means review of the court’s legally effective judgments and rulings which are protested against due to newly discovered circumstances which may substantially change contents of such judgments and rulings but were unknown to the court when making such judgments and rulings.

Article 398. Grounds for filing protests according to the reopening procedures

A court’s legally effective judgment or ruling may be protested against according to the reopening procedures when:

1. There is a ground to prove that a statement of a witness, an expert assessment conclusion, a property valuation conclusion, an interpretation or a translation has important points which are untruthful;

2. There is a circumstance which an investigator, a procurator, a judge or an assessor is not aware of so he/she makes an incorrect conclusion, making the  judgment or ruling fail to reflect the objective truth of the case;

3. Exhibits and written records of investigation, prosecution and trial, other proceeding records or other evidence, documents and objects in the case are forged or untruthful;

4. There are other circumstances making the judgment or ruling fail to reflect the objective truth of the case.

Article 399. Notification and verification of newly discovered circumstances

1. Convicts, bodies, organizations and all individuals have the right to discover new circumstances of a criminal case and report them together with relevant documents to the procuracy or court. If the court receives reports or discovers on its own new circumstances of a criminal case, it shall immediately send a written notice thereof together with relevant documents to the chief procurator of the procuracy competent to protest according to the reopening procedures. The chief procurator of the procuracy competent to protest according to the reopening procedures shall issue a decision to verify such circumstances.

2. The procuracy shall verify new circumstances. When deeming it necessary, the chief procurator of the procuracy competent to protest according to the reopening procedures shall request a competent investigation body to verify new circumstances of the case and transfer results of the verification to the procuracy.

3. When verifying new circumstances of a criminal case, the procuracy and investigation body may apply the procedural investigation measures prescribed in this Code.

Article 400. Persons who may file protests according to the reopening procedures

1. The Procurator General of the Supreme People’s Procuracy may file protests according to the reopening procedures against legally effective judgments and rulings of courts at all levels, except for rulings of the Judicial Council of the Supreme People’s Court.

2. The Chief Procurator of the Central Military Procuracy may file protests according to the reopening procedures against legally effective judgments and rulings of military zone-level military courts and regional military courts.

3. Chief procurators of superior people’s procuracies may file protests according to the reopening procedures against legally effective judgments and rulings of provincial-level people’s courts and district-level people’s courts falling under their respective territorial jurisdiction.

Article 401. Time limit for protesting according to the reopening procedures

1. Reopening trial unfavorable to a convict may only be conducted within the statute of limitations for penal liability examination prescribed in Article 27 of the Penal Code and the time limit for filing a protest is 1 year after the procuracy receives a report on newly discovered circumstances.

2. Reopening trial favorable to a convict is not subject to temporal limitations and may be conducted even when the convict has died but it is still necessary to prove his/her innocence.

3. A civil protest in a criminal case with regard to an involved party shall be filed according to the law on civil procedure.

Article 402. Jurisdiction of the reopening trial panel

1. To reject protests and uphold legally effective judgments and rulings which are protested against.

2. To cancel the court’s legally effective judgments and rulings for re-investigation or re-trial.

3. To cancel the court’s legally effective judgments and rulings and cease the case.

4. To cease the reopening trial.

Article 403. Other reopening trial procedures

Other opening trial procedures must comply with the provisions of this Code on cassation trial procedures.

Chapter XXVII

PROCEDURES FOR REVIEWING RULINGS OF THE JUDICIAL COUNCIL OF THE SUPREME PEOPLE’S COURT

Article 404. Requests, recommendations and proposals for review of rulings of the Judicial Council of the Supreme People’s Court

1. If there is a ground to believe that a ruling of the Judicial Council of the Supreme People’s Court has a serious violation of law or there is a newly discovered important circumstance which may substantially change the content of such ruling and the Judicial Council of the Supreme People’s Court was not aware of such circumstance when making such ruling, if it is requested by the Standing Committee of the National Assembly, recommended by the Judicial Affairs Committee of the National Assembly or Procurator General of the Supreme People’s Procuracy, or proposed by the Chief Justice of the Supreme People’s Court, the Judicial Council of the Supreme People’s Court shall hold a meeting to review such ruling.

2. If it is requested by the Standing Committee of the National Assembly, the Chief Justice of the Supreme People’s Court shall report such request to the Judicial Council of the Supreme People’s Court for the latter to review its ruling.

3. If it is recommended by the Judicial Affairs Committee of the National Assembly or Procurator General of the Supreme People’s Procuracy, the Judicial Council of the Supreme People’s Court shall hold a meeting to consider such recommendation.

If it is proposed by the Chief Justice of the Supreme People’s Court, it shall be reported to the Judicial Council of the Supreme People’s Court to hold a meeting to consider such proposal.

Article 405. Participants in meetings of the Judicial Council of the Supreme People’s Court to consider recommendations and proposals

1. The Procurator General of the Supreme People’s Procuracy shall participate in meetings of the Judicial Council of the Supreme People’s Court to consider recommendations of the Judicial Affairs Committee of the National Assembly or Procurator General of the Supreme People’s Procuracy, or proposals of the Chief Justice of the Supreme People’s Court.

2. Representatives of the Judicial Affairs Committee of the National Assembly shall be invited to participate in meetings of the Judicial Council of the Supreme People’s Court to consider recommendations of the Justice Committee of the National Assembly.

3. When deeming it necessary, the Supreme People’s Court may invite related bodies, organizations and individuals to participate in meetings.

Article 406. Preparation for holding meetings to consider recommendations and proposals

1. After receiving a recommendation of the Judicial Affairs Committee of the National Assembly or Procurator General of the Supreme People’s Procuracy or after the Chief Justice of the Supreme People’s Court makes a written proposal for review of a ruling of the Judicial Council of the Supreme People’s Court, the Supreme People’s Court shall send a copy of such recommendation or proposal enclosed with the case file to the Supreme People’s Procuracy so that the latter can prepare its opinions to be presented at a meeting to consider such recommendation or proposal.

The Chief Justice of the Supreme People’s Court shall organize the verification of the case file to be reported to the Judicial Council of the Supreme People’s Court for consideration and decision at the meeting.

2. Within 30 days after receiving a recommendation of the Judicial Affairs Committee of the National Assembly or Procurator General of the Supreme People’s Procuracy, or after the Chief Justice of the Supreme People’s Court makes a written proposal, the Judicial Council of the Supreme People’s Court shall hold a meeting to consider such recommendation or proposal and notify in writing the Procurator General of the Supreme People’s Procuracy of the time and venue of the meeting.

Article 407. Procedures for holding meetings to consider recommendations and proposals

1. The Chief Justice of the Supreme People’s Court shall briefly present or assign a member of the Judicial Council of the Supreme People’s Court to briefly present the content and settlement of the case.

2. The representative of the Judicial Affairs Committee of the National Assembly, Chief Justice of the Supreme People’s Court or Procurator General of the Supreme People’s Procuracy who makes the recommendation or proposal for review of a ruling of the Judicial Council of the Supreme People’s Court shall present the following:

a/ Contents of the recommendation or proposal;

b/ Grounds for making the recommendation or proposal;

c/ Analysis of old evidence and newly added evidence (if any) to clarify the serious violation of law in the ruling of the Judicial Council of the Supreme People’s Court or new important circumstances which may substantially change the ruling of the Judicial Council of the Supreme People’s Court.

3. In case of considering a recommendation of the Judicial Affairs Committee of the National Assembly or a proposal of the Chief Justice of the Supreme People’s Court, the Procurator General of the Supreme People’s Procuracy shall present his/her opinions on the ground and lawfulness of such recommendation or proposal; and clearly state his/her view on and reason for agreeing or disagreeing with such recommendation or proposal.

4. The Judicial Council of the Supreme People’s Court shall discuss and decide by majority vote to agree or disagree with the recommendation or proposal for review of its ruling.

5. If the Judicial Council of the Supreme People’s Court agrees with the recommendation of the Judicial Affairs Committee of the National Assembly or Procurator General of the Supreme People’s Procuracy or the proposal of the Chief Justice of the Supreme People’s Court, it shall decide to hold a meeting to review its ruling.

6. Every proceeding at a meeting to consider a recommendation or proposal and decisions made at the meeting shall be recorded in the meeting minutes and included in the file of the recommendation or proposal.

Article 408. Notification of results of meetings to consider recommendations and proposals

After a meeting ends, the Judicial Council of the Supreme People’s Court shall send a notice of the meeting result of agreeing or disagreeing with the recommendation or proposal to the Judicial Affairs Committee of the National Assembly or Procurator General of the Supreme People’s Procuracy. Such a notice must clearly state the reason for agreeing or disagreeing with the recommendation or proposal.

Article 409. Appraisal of case files; verification and collection of evidence, documents and objects

1. If it is requested by the National Assembly Standing Committee or it is decided by the Judicial Council of the Supreme People’s Court to agree with the review of its ruling, the Chief Justice of the Supreme People’s Court shall organize the appraisal of the case file and the verification and collection of documents, evidence and objects in case of necessity.

2. The appraisal of the case file and verification and collection of evidence, documents and objects must clarify whether there is a serious violation of law or there is a new important circumstance which may substantially change the ruling of the Judicial Council of the Supreme People’s Court.

Article 410. Time limit for holding meetings to review rulings of the Judicial Council of the Supreme People’s Court

1. Within 4 months after it receives a request from the National Assembly Standing Committee or decides to agree with the review of its ruling, the Judicial Council of the Supreme People’s Court shall hold a meeting to review its ruling.

2. The Supreme People’s Court shall send to the Supreme People’s Procuracy a notice of the time and venue of the meeting to review the ruling of the Judicial Council of the Supreme People Court enclosed with the case file in case the National Assembly Standing Committee makes a request.

Article 411. Procedures and competence for reviewing rulings of the Judicial Council of the Supreme People’s Court

1. The Procurator General of the Supreme People’s Procuracy shall participate in a meeting to review a ruling of the Judicial Council of the Supreme People’s Court and present his/her view on whether there is a serious violation of law or there is a new important circumstance which may substantially change the ruling of the Judicial Council of the Supreme People’s Court and his/her view on the settlement of the case.

2. After listening to the report of the Chief Justice of the Supreme People’s Court and opinions of the Procurator General of the Supreme People’s Procuracy and of related bodies, organizations and individuals participating in the meeting (if any), the Judicial Council of the Supreme People’s Court shall rule:

a/ Not to accept the request of the National Assembly Standing Committee, recommendation of the Judicial Affairs Committee of the National Assembly or Procurator General of the Supreme People’s Procuracy or proposal of the Chief Justice of the Supreme People’s Court and retain its ruling;

b/ To cancel its ruling and the legally effective judgment or ruling containing a violation of law, and decide on the content of the case;

c/ To cancel its ruling and the legally effective judgment or ruling, and determine the responsibility for compensation for damage in accordance with law;

d/ To cancel its ruling and the legally effective judgment or ruling containing a violation of law for re-investigation or re-trial.

3. The ruling of the Judicial Council of the Supreme People’s Court shall be voted for by at least three quarters of its total members.

Article 412. Sending of rulings of the Judicial Council of the Supreme People’s Court on review of its rulings

After the Judicial Council of the Supreme People’s Court makes one of the rulings prescribed in Article 411 of this Code, the Supreme People’s Court shall send such ruling to the National Assembly Standing Committee, Judicial Affairs Committee of the National Assembly, Supreme People’s Procuracy, investigation body, procuracy and court that have settled the case, and related persons.

Part SEVEN

SPECIAL PROCEDURES

Chapter XXVIII

PROCEDURES APPLICABLE TO PERSONS AGED UNDER 18

Article 413. Scope of application

The procedures applicable to criminally charged persons, victims and witnesses who are aged under 18 must comply with the provisions of this Chapter, and concurrently with other provisions of this Code which are not contrary to those of this Chapter.

Article 414. Principles of conducting the proceedings

1. Ensuring that procedures are friendly and suitable to persons aged under 18 in terms of their psychology, age, maturity and cognitive capacity; guaranteeing their lawful rights and interests and best interests.

2. Ensuring personal secrets of persons aged under 18.

3. Ensuring the right to participate in the proceedings of representatives of persons aged under 18; the school, Youth Union, persons having experience and knowledge about psychology and social affairs, and other organizations where persons aged under 18 study or work or are members.

4. Respecting the right of persons aged under 18 to participate in the proceedings and express their opinions.

5. Guaranteeing the rights of persons aged under 18 to counsel and to legal aid.

6. Ensuring the principles of handling offenders aged under 18 prescribed in the Penal Code;

7. Ensuring the quick and timely settlement of cases involving persons aged under 18.

Article 415. Proceeding-conducting persons

Persons conducting the criminal proceedings in cases involving persons aged under 18 must have been trained or have experience in investigating, prosecuting or adjudicating cases involving persons aged under 18, have necessary knowledge about psychology and education of persons aged under 18.

Article 416. Matters to be identified when conducting the procedures against criminally charged persons who are aged under 18

1. Age, level of physical and mental development, awareness of criminal acts of persons aged under 18;

2. Living and educational conditions;

3. Whether or not criminally charged persons are incited by persons aged full 18 or older;

4. Causes, conditions and circumstances of the commission of offenses.

Article 417. Identification of the age of criminally charged persons and victims who are under 18

1. The identification of the age of a criminally charged person or victim who is under 18 shall be performed by a body competent to conduct the proceedings in accordance with law.

2. If lawful measures have been applied but the date (day, month and year) of birth of a criminally charged person or victim cannot be exactly identified, such date shall be identified as follows:

a/ If the month of birth has been identified but the exact day cannot be identified, the last day of that month shall be taken as the day of birth;

b/ If the quarter of birth has been identified but the exact month and day of birth cannot be identified, then the last day of the last month of that quarter shall be taken as the month and day of birth;

c/ If half of the year of birth has been identified but the exact month and day of birth cannot be identified, the last day of the last month of that half of the year shall be taken as the month and day of birth;

d/ If the year of birth has been identified but the exact month and day of birth cannot be identified, the last day of the last month of that year shall be taken as the month and day of birth.

3. If the year of birth cannot be identified, an expert assessment shall be performed to identify the age.

Article 418. Supervision of criminally charged persons who are aged under 18

1. An investigation body, a body assigned to carry out a number of investigation activities, the procuracy or court may issue a decision to consign a criminally charged person who is aged under 18 to his/her representatives for supervision in order to secure his/her appearance in response to a summons of a body competent to conduct the proceedings.

2. A person assigned to supervise a person aged under 18 shall closely supervise such person, monitor his/her behaviors and morality and educate him/her.

If a person aged under 18 shows a sign of abscondence or commits an act of bribing, forcing or inciting other persons to provide false statements or provide untruthful documents; destroying or forging evidence, documents and objects of the case, dispersing a property related to the case; threatening, controlling or taking revenge on witnesses, victims, persons denouncing the offense or relatives of these persons; or continuing to commit an offense, the person assigned to supervise him/her shall promptly report to and coordinate with a body competent to conduct the proceedings to take timely deterrent and handling measures.

Article 419. Application of deterrent measures and coercive measures

1. A deterrent measure or the measure of police escort may only be applied to a criminally charged person who is aged under 18 when it is really necessary.

The measure of custody or temporary detention may be applied to a criminally charged person who is aged under 18 only when there is a ground to determine that the application of the measure of supervision and other deterrent measures is ineffective. The time limit for temporary detention of criminally charged persons who are aged under 18 is equal to two thirds of the time limit for temporary detention of persons aged full 18 or older prescribed in this Code. When the ground for custody or temporary detention no longer exists, the competent body or person shall promptly cancel such measure and replace it with another deterrent measure.

2. A person aged between full 14 and under 16 may be held in case of emergency, arrested, held in custody or temporarily detained for an offense prescribed in Clause 2, Article 12 of the Penal Code if there are grounds prescribed in Articles 110, 111 and 112, and at Points a, b, c, d and dd, Article 119, of this Code.

3. A person aged between full 16 and under 18 may be held in case of emergency, arrested, held in custody or temporarily detained for a serious offense committed intentionally, a very serious offense or a particularly serious offense if there are grounds prescribed in Articles 110, 111 and 112, and at Points a, b, c, d and dd, Article 119 of this Code.

4. The accused or a defendant aged between full 16 and under 18, against whom criminal proceedings are initiated or who is investigated, prosecuted or tried for a serious offense committed unintentionally or for a less serious offense for which the Penal Code prescribes a termed imprisonment penalty of up to 2 years, may be arrested, held in custody or temporarily detained if he/she continues to commit an offense, absconds and is arrested under a pursuit warrant.

5. Within 24 hours after holding in case of emergency, arresting, holding in custody or temporarily detaining a person aged under 18, the person issuing the holding warrant, arrest, custody or temporary detention warrant or decision against such person shall notify such to his/her representative.

Article 420. Participation in proceedings by representatives, schools and organizations

1. A representative of a person aged under 18, teachers, representatives of the school, Youth Union and other organizations where such person studies, works and participates in common activities have the right and obligation to participate in proceedings under a decision of the investigation body, procuracy or court.

2. A representative of a person aged under 18 may participate in the taking of statements or interrogation of such person; present evidence, documents, objects, requests, complaints and denunciations; read, take notes and make copies of documents relating to the accusation against such person in the case file upon completion of the investigation.

3. When participating in a hearing, the persons specified in Clause of this Article may present evidence, documents, objects, requests and proposals on replacement of proceeding-conducting persons; present their opinions and arguments; and complain about procedural acts of persons competent to conduct the proceedings and about rulings of the court.

Article 421. Taking of statements of persons held in case of emergency, arrested or held in custody, victims, witnesses; interrogation of the accused; confrontation

1. When taking statements of a person held in case of emergency, arrested or held in custody, a victim or witness, or interrogating the accused who is a person aged under 18, a body competent to conduct the proceedings shall notify in advance the time and place of taking statements or interrogation to his/her defense counsel and representative or defender of his/her lawful rights and interests.

2. The taking of statements of a person held in case of emergency, arrested or held in custody or interrogation of the accused shall be attended by his/her defense counsel or representative.

The taking of statements of a victim or witness shall be attended by his/her representative or defender of his/her lawful right and interests.

3. A defense counsel or representative may ask questions to an arrestee, a person held in custody or the accused being a person aged under 18 when obtaining consent of the investigator or procurator. After the end of each time of taking statements or interrogation by a competent person, the defense counsel or representative may ask questions to the person held in case of emergency, arrested, held in custody or temporarily detained or the accused.

4. The taking of statements of a person aged under 18 may be held no more than twice a day and for no more than 2 hours each time, except for cases with many complicated circumstances.

5. Interrogation of the accused who is aged under 18 may be held no more than twice a day and for no more than 2 hours each time, except in the following cases:

a/ The offense is committed in an organized manner;

b/ The interrogation also aims to pursue other offenders who are at large;

c/ The interrogation also aims to prevent other persons from committing offenses;

d/ The interrogation also aims to search for tools and means used for committing offenses or other exhibits of the case;

dd/ The case involves many complicated circumstances.

6. A person competent to conduct the proceedings may hold a confrontation between a victim aged under 18 and the accused or a defendant only in order to clarify circumstances of the case which cannot be settled without such confrontation.

Article 422. Defense

1. A criminally charged person who is aged under 18 may make self-defense or ask another person to defend him/her.

2. A representative of a criminally charged person who is aged under 18 may select a defense counsel for or defend by himself/herself such person.

3. If a criminally charged person who is aged under 18 has no defense counsel or his/her representative does not select a defense counsel for him/her, the investigation body, procuracy or court shall appoint a defense counsel under Article 76 of this Code.

Article 423. Trial

1. The composition of the first-instance trial panel of a criminal case must include an assessor who is a teacher or Youth Union cadre or has experience and knowledge about the psychology of persons aged under 18.

2. In a special case where it is necessary to protect a defendant or victim aged under 18, the court may decide to conduct in-camera trial.

3. A hearing to try a defendant aged under 18 shall be conducted in the presence of his/her representative and representative of the school or organization where he/she studies or participates in common activities, unless such persons are absent not due to a force majeure event or an external obstacle.

4. The inquiry of, and exchange of arguments with, a defendant, victim or witness aged under 18 at a hearing shall be conducted in a way suitable to his/her age and development level. The courtroom shall be arranged in a way friendly and suitable to the person aged under 18.

5. For a case involving a victim or witness aged under 18, the trial panel shall restrict the contact between such victim or witness and defendants when the former presents his/her testimonies at the hearing. The presiding judge of the hearing may request the representative or defender of lawful rights and interests of such victim or witness to ask questions to him/her.

6. In the course of trial, if deeming it unnecessary to impose penalties on defendants, the trial panel shall apply the measure of education at reformatory.

7. The Chief Justice of the Supreme People’s Court shall prescribe in detail the trial of cases involving persons aged under 18 by the Family and Juvenile Tribunal.

Article 424. Termination of execution of the measure of education in commune, ward or township or the measure of education at reformatory, commutation of or exemption from serving penalties

A convict aged under 18 may be entitled to the termination of execution of the measure of education in commune, ward or township or the measure of education at reformatory, or to the commutation of or exemption from serving the penalty when fully satisfying the conditions prescribed in Article 95, 96 or 105 of the Penal Code.

Article 425. Expunction of criminal records

The expunction of criminal records for an offender aged under 18 who  fully satisfies the conditions prescribed in Article 107 of the Penal Code shall be made according to the general procedures prescribed in this Code.

Article 426. Competence to apply supervision and educational measures against offenders aged under 18 who are exempted from penal liability

An investigation body, the procuracy or court is competent to decide to apply one of the following supervision and educational measures against offenders aged under 18 who are exempted from penal liability:

1. Reprimand;

2. Community-based conciliation;

3. Education in commune, ward or township.

Article 427. Order and procedures for application of the measure of reprimand

1. When exempting an offender aged under 18 from penal liability and finding that the conditions for application of the measure of reprimand are fully satisfied in accordance with the Penal Code, the head or a deputy head of the investigation body, chief procurator or a deputy chief procurator of the procuracy, or the trial panel shall decide to apply the measure of reprimand to such person in the case which has been accepted and settled by his/her body.

2. A decision to apply the measure of reprimand must have the following principal details:

a/ Serial number, date and place of issuance;

b/ Full name, position and signature of the person competent to issue the decision, and stamp of the issuing body;

c/ Reason and ground for issuance of the decision;

d/ Full name, date of birth and residence of the accused or defendant;

dd/ Charged offense, applied point, clause and article of the Penal Code;

e/ Time limit for fulfilling the obligation of the reprimanded person.

3. The investigation body, procuracy or court shall immediately hand the decision to apply the measure of reprimand to the person concerned and his/her parents or representative.

Article 428. Order and procedures for application of the measure of community-based conciliation

1. When finding that the conditions for application of the measure of community-based conciliation are fully satisfied in accordance with the Penal Code, the head or a deputy head of the investigation body, chief procurator or a deputy chief procurator of the procuracy or the trial panel shall decide to apply such measure.

2. A decision to apply the measure of community-based conciliation must have the following principal details:

a/ Serial number, date and place of issuance;

b/ Full name, position and signature of the person competent to issue the decision, and stamp of the issuing body;

c/ Reason and ground for issuance of the decision;

d/ Charged offense and applied point, clause and article of the Penal Code;

dd/ Full name of the investigator or procurator or judge assigned to hold the conciliation;

e/ Full name, date of birth and residence of the accused or defendant;

g/ Full name of the victim;

h/ Full names of other persons participating in the conciliation;

i/ Time and place of the conciliation.

3. The decision to apply the measure of community-based conciliation shall be handed to the offender aged under 18, his/her parents or representative; the victim, his/her representative and the People’s Committee of the commune, ward or township where the community-based conciliation is held at least 3 days before the conciliation is held.

4. When holding a conciliation, the investigator or procurator or judge assigned to hold the conciliation shall coordinate with the People’s Committee of the commune, ward or township where the community-based conciliation is held and make a written record of the conciliation.

5. A written record of a conciliation must have the following principal details:

a/ Place, time and date of the conciliation, starting time and ending time;

b/ Full name of the investigator, procurator or judge assigned to hold the conciliation;

c/ Full name, date of birth and residence of the accused or defendant;

d/ Full name, date of birth and residence of the victim;

dd/ Full names, dates of birth and residences of other persons participating in the conciliation;

e/ Questions, answers and statements of persons participating in the conciliation;

g/ Conciliation results; the person aged under 18 and his/her parents or representative make an apology to the victim and pay compensation for damage (if any); the victim or his/her representative has voluntarily conciliated and requested exemption from penal liability (if any);

h/ Signature of the conciliating investigator, procurator or judge.

6. Upon completion of the conciliation, the investigator, procurator or judge holding the conciliation shall read the written record of the conciliation again to the participants in the conciliation. If anyone requests modification or supplements to be written in the record, the investigator, procurator or judge who has made the record shall write such modifications or supplements in the record and sign it for certification. If such a request is rejected, the reason for rejection shall be clearly written in the record. The conciliation record shall be immediately handed to the participants in the conciliation.

Article 429. Order and procedures for application of the measure of education in commune, ward or township

1. When exempting an offender aged under 18 from penal liability and finding that the conditions for application of the measure of education in commune, ward or township are fully satisfied in accordance with the Penal Code, the head or a deputy head of the investigation body, chief procurator or a deputy chief procurator of the procuracy or the trial panel shall decide to apply such measure to such person in the case which has been accepted and settled by his/her body.

2. A decision to apply the measure of education in commune, ward or township must have the following principal details:

a/ Serial number, date and place of issuance;

b/ Full name, position and signature of the person competent to issue the decision, and stamp of the issuing body;

c/ Reason and ground for issuance of the decision;

d/ Full name, date of birth and residence of the accused or defendant;

dd/ Charged offense and applied point, clause and article of the Penal Code;

e/ Time limit for application of the measure of education in commune, ward or township.

g/ Responsibility of the administration of the commune, ward or township where the person subject to such measure resides.

3. Within 3 days after issuing a decision to apply the measure of education in commune, ward or township, the investigation body, procuracy or court shall hand it to the person subject to the measure, his/her their parents or representative and the administration of the commune, ward or township where he/she resides.

Article 430. Order and procedures for application of the measure of education at reformatory

1. When deeming it unnecessary to apply a penalty, the trial panel shall rule in the judgment to apply the measure of education at reformatory to an offender aged under 18.

2. A decision to apply the measure of education at reformatory must have the following principal details:

a/ Serial number, date and place of issuance;

b/ Full names and signatures of members of the trial panel that has issued the decision;

c/ Reason and ground for issuance of the decision;

d/ Full name, date of birth and residence of the defendant;

dd/ Charged offense and applied point, clause and article of the Penal Code;

e/ Time limit for application of the measure of education at reformatory;

g/ Responsibilities of the reformatory where the person subject to this measure is educated.

3. The decision to apply the measure of education at reformatory shall be immediately handed to the offender aged under 18, his/her parents or representative of the reformatory where he/she is educated.

Chapter XXIX

PROCEDURES FOR EXAMINATION OF PENAL LIABILITY OF LEGAL PERSONS

Article 431. Scope of application

Procedures applicable to legal persons against which denunciations, offense reports or criminal case initiation proposals are made, or which are investigated, prosecuted or tried, or against which judgments are executed shall be carried out in accordance with the provisions of this Chapter and concurrently with other provisions of this Code which are not contrary to the provisions of this Chapter.

Article 432. Initiation of criminal cases, change or supplementation of criminal case initiation decisions